27 I. & N. Dec. 168
BIA2017Background
- Respondents, Mexican nationals, presented for admission at San Ysidro on Sept. 17, 2015, expressed fear of return, were paroled into the U.S. on Sept. 19, 2015, and DHS served Notices to Appear charging inadmissibility under INA § 212(a)(7).
- Filing of the NTA commenced section 240 removal proceedings before an Immigration Judge (IJ).
- Respondents moved to terminate the removal proceedings without prejudice so they could first present an asylum claim to DHS (asylum officer/credible-fear machinery) rather than proceed directly in Immigration Court.
- The IJ granted termination, reasoning paroled arriving aliens should get the nonadversarial DHS asylum interview first and that terminating would conserve Immigration Court resources and avoid unequal treatment.
- DHS appealed the IJ decision to the Board of Immigration Appeals (BIA), arguing the IJ lacked authority to terminate proceedings to force DHS to use expedited removal/credible-fear procedures or to give the respondents a first bite before DHS.
- The BIA held the IJ erred, reinstated removal proceedings, and remanded the record for further proceedings before the IJ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an IJ may terminate §240 proceedings to allow an arriving, paroled alien to first seek asylum before DHS (credible-fear/asylum officer) | Respondents: Termination is appropriate so they can pursue a DHS asylum interview first; otherwise they are treated unequally compared to other arriving aliens | DHS: IJ may not direct DHS prosecutorial choices or require expedited removal; once DHS files an NTA, IJ has jurisdiction and must adjudicate asylum | IJ erred; an IJ may not terminate proceedings to force DHS to conduct credible-fear/asylum officer processing; proceedings reinstated |
| Whether DHS’s decision to parole and file §240 NTA (rather than use expedited removal §235) violated respondents’ rights to initial DHS credible-fear review | Respondents: DHS improperly bypassed credible-fear interview process | DHS: DHS has prosecutorial discretion to parole and place alien in §240 proceedings without credible-fear interview | DHS decision is discretionary and not reviewable by IJ/BIA; no due process violation because respondents receive a full hearing before IJ |
| Whether lack of DHS credible-fear interview deprives respondents of opportunity to establish fear of return | Respondents: Claim they lost procedural opportunity to establish fear before DHS officer | DHS: Even a positive credible-fear finding does not grant asylum; it merely refers case to IJ for de novo review | Held for DHS: credible-fear is preliminary and does not replace full §240 adjudication; respondents are not prejudiced as IJ will consider asylum de novo |
| Whether IJ may act to conserve court resources by terminating proceedings when DHS has started §240 proceedings | Respondents/IJ: Termination may conserve resources and is fairer (nonadversarial DHS interview) | DHS: IJ cannot encroach on DHS prosecutorial and parole authority | Held for DHS: IJ duty is to adjudicate once DHS initiates §240 proceedings; conserving resources does not authorize termination |
Key Cases Cited
- None with official reporter citations were cited in the opinion (the BIA relied on prior Board/INS precedent and internal decisions such as Matter of E‑R‑M‑ & L‑R‑M‑, Matter of P‑L‑P‑, Matter of W‑Y‑U‑, and Matter of Roussis).