26 I. & N. Dec. 43
BIA2012Background
- Respondent, a Mexican national, was charged as removable for being present without admission or parole.
- Notice to appear was filed Oct 16, 2007; respondent appeared at a master calendar on Nov 27, 2007 and conceded removability.
- IJ granted multiple continuances related to an adjustment of status and related issues.
- At a Feb 3, 2011 master calendar, respondent’s counsel appeared without him and sought termination; DHS sought in absentia proceedings.
- IJ terminated proceedings, ruling she lacked jurisdiction because respondent had departed the United States.
- DHS appealed; Board held IJ erred and reinstated removal proceedings, remanding for new decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does departure after proceedings begin divest the IJ of jurisdiction? | DHS argues jurisdiction remains once properly filed. | Sanchez-Herbert contends departure ends proceedings. | Departure does not divest jurisdiction; IJ retains jurisdiction. |
| May an in absentia hearing proceed when the alien is outside the U.S.? | DHS supported in absentia procedure to establish removal if proper notice is shown. | Respondent failed to appear; termination would nullify in absentia process. | In absentia proceedings are permissible; the DHS bears burden to prove removability. |
| Was terminating the proceedings proper given the facts? | DHS contends termination was improper; proceedings should continue toward removal. | IJ believed termination appropriate due to lack of jurisdiction. | Termination was improper; DHS’s appeal sustained; record remanded for reinstatement and new decision. |
Key Cases Cited
- Matter of Brown, 18 I&N Dec. 324 (BIA 1982) (departure does not automatically terminate proceedings)
- Matter of Luis, 22 I&N Dec. 747 (BIA 1999) (departure pending appeal does not moot the case)
- Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990) (DHS must meet burden in in absentia to remove)
- Matter of Singh, 21 I&N Dec. 427 (BIA 1996) (prosecution to a conclusion requires removal if evidence supports)
- Matter of W-C-B-, 24 I&N Dec. 118 (BIA 2007) (jurisdiction vests; DHS cannot cancel notice to appear absent ground)
- Matter of Vizcarra-Delgadillo, 13 I&N Dec. 51 (BIA 1968) (IJ authority to terminate as improvidently begun)
- Matter of Hidalgo, 24 I&N Dec. 103 (BIA 2007) (termination discussed where naturalization pending)
- Matter of Quintero, 18 I&N Dec. 348 (BIA 1982) (termination not a proper means to delay deportation)