Matter of E-R-M- & L-R-M-, Respondents
U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided June 3, 2011
25 I&N Dec. 520 (BIA 2011)
Interim Decision #3716
(2) The fact that an Immigration Judge has no jurisdiction over applications for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, does not negate his or her jurisdiction over the removal proceedings of arriving Cuban aliens under section 240 of the Act.
FOR RESPONDENT: Won Kidane, Esquire, Seattle, Washington
FOR THE DEPARTMENT OF HOMELAND SECURITY: Joy A. Merriman, Assistant Chief Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated December 11, 2009, an Immigration Judge terminated the removal proceedings against the respondents on jurisdictional grounds, concluding that arriving aliens who are inadmissible must be placed in expedited removal proceedings pursuant to section 235(b)(1)(A)(i) of the Immigration and Nationality Act,
The DHS initiated removal proceedings under section 240 of the Act,
If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States . . . is inadmissible under section 212(a)(6)(C) or 212(a)(7), the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution.
The Immigration Judge found that only aliens described in section 235(b)(1)(F) of the Act are exempt from expedited removal proceedings. That section provides that expedited removal “shall not apply to an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.” The Immigration Judge determined that the respondents, who are citizens of Cuba, did not fall into this exception because they arrived at a land border crossing. See
On appeal, the DHS argues that the Immigration Judge erred in holding that he lacked jurisdiction over these section 240 removal proceedings. In their brief on appeal, the respondents agree with the DHS that it had discretion to place them in removal proceedings.1 However, they claim that the Immigration Judge correctly found that he lacked jurisdiction over their case because they are prima facie eligible for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended (“Cuban Adjustment Act“). We will first address the DHS‘s argument that the Immigration Judge had jurisdiction to adjudicate the respondents’ case in removal proceedings and then turn to the respondents’ argument regarding the Cuban Adjustment Act.2
The DHS argues that it is not required to process aliens described in section 235(b)(1)(A)(i) of the Act in section 235(b) expedited removal proceedings and that it has the discretion to place these aliens directly into section 240 removal proceedings. The DHS contends that the use of the word “shall” in section 235(b)(1)(A)(i) of the Act is properly interpreted to mean “may.”
We reach this conclusion for two reasons. First, we observe that the issue arises in the context of a purported restraint on the DHS‘s exercise of its prosecutorial discretion. In that context, we find that Congress’ use of the term “shall” in section 235(b)(1)(A)(i) of the Act does not carry its ordinary meaning, namely, that an act is mandatory. It is common for the term “shall” to mean “may” when it relates to decisions made by the Executive Branch of the Government on whether to charge an individual and on what charge or charges to bring. For example, in the Federal criminal code, Congress has defined most crimes by providing that whoever engages in certain conduct “shall” be imprisoned or otherwise punished. But this has never been construed to require a Federal prosecutor to bring charges against every person believed to have violated the statute, or to mandate that where, as here, when multiple charges are possible, one or the other or all must be pursued.
To the contrary, the Supreme Court has found that the decision whether to charge an individual with a crime is one reserved almost exclusively to the Executive Branch. See generally United States v. Armstrong, 517 U.S. 456, 464 (1996) (observing that the Attorney General and United States Attorneys retain broad discretion to enforce the country‘s criminal laws and that they “have this latitude because they are designated by statute as the President‘s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed‘” (quoting
By way of illustration, in United States v. Batchelder, 442 U.S. 114, 118 (1979), the Court considered a case involving two statutes,
Like section 235(b)(1)(A)(i) of the Act, the statutes at issue in Batchelder used the word “shall.” The Court observed that it had “long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.” Id. at 123-24. The Court further observed that “[w]hether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor‘s discretion.” Id. at 124; see also United States v. Armstrong, 517 U.S. at 464 (“In the ordinary case, ‘so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and
Applying the above general principles, we find no reason to suppose that the broad discretion given to the Executive Branch regarding charging decisions in the criminal context does not also apply to charging decisions by the Executive Branch, that is, the DHS, in the immigration context.
Second, we find that the statutory scheme itself supports our reading that the DHS has discretion to put aliens in section 240 removal proceedings even though they may also be subject to expedited removal under section 235(b)(1)(A)(i) of the Act. Section 235(b)(2)(A) of the Act provides that “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240.”4 Thus, aliens who are in the broad category of applicants for admission, which includes, inter alia, any alien present in the United States who has not been admitted, are entitled to section 240 removal proceedings. See section 235(a)(1) of the Act.
However, section 235(b)(2)(B) of the Act, titled “Exception,” states that section 235(b)(2)(A) “shall not apply” to crewmen, stowaways, or aliens “to whom paragraph (1) applies,” namely, arriving aliens, such as the respondents in this case. We read this exception in section 235(b)(2)(B) as meaning that these three classes of aliens, including those subject to expedited removal under section 235(b)(1)(A)(i), are not entitled to a section 240 proceeding, not that these classes of aliens may not be placed in such proceedings. This reading is confirmed by the fact that section 235(a)(2) prohibits stowaways, but not the other two classes of aliens excepted under section 235(a)(2)(B), from being placed in section 240 proceedings. See section 235(a)(2) of the Act (“In no case may a stowaway be considered
Accordingly, based on the prosecutorial discretion given to the DHS and the above-cited provisions in the Act, we find that it was permissible for the DHS to file a Notice to Appear commencing section 240 removal proceedings against the respondents and that the Immigration Judge has jurisdiction over them.5
We now turn to the respondents’ argument that the Immigration Judge has no jurisdiction over their case because they are prima facie eligible for adjustment under the Cuban Adjustment Act. In Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009), we held that Immigration Judges lack jurisdiction under
Based on the foregoing, we will sustain the DHS‘s appeal and vacate the Immigration Judge‘s ruling that he lacked jurisdiction over the respondents’ case. Accordingly, section 240 removal proceedings will be reinstated and the Immigration Judge will determine whether the respondents are removable as charged and, if they are removable, give them an opportunity to pursue any other relief from removal for which they may be eligible. We recognize that the Immigration Judge has no jurisdiction over applications for adjustment
ORDER: The appeal of Department of Homeland Security is sustained, the decision of the Immigration Judge is vacated, and the removal proceedings against the respondents are reinstated.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.