HENRIQUEZ RIVERA
Case Information
Matter of Pablo De Jesus HENRIQUEZ RIVERA, Respondent
Decided August 8, 2011 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals When an application for Temporary Protected Status that has been denied by the United States Citizenship and Immigration Services (“USCIS”) is renewed in removal proceedings, the Immigration Judge may, in the appropriate circumstances, require the Department of Homeland Security to provide the application that the applicant filed with the USCIS.
FOR RESPONDENT: Lino R. Rodriguez, Jr., Esquire, Atlanta, Georgia FOR THE DEPARTMENT OF HOMELAND SECURITY: Randall W. Duncan, Assistant Chief Counsel
BEFORE: Board Panel: ADKINS-BLANCH and GUENDELSBERGER, Board Members; KENDALL CLARK, Temporary Board Member.
ADKINS-BLANCH, Board Member:
In a decision dated July 7, 2010, an Immigration Judge terminated the removal proceedings against the respondent. The Department of Homeland Security (“DHS”) has appealed from that decision. The respondent has not replied to the DHS’s brief on appeal. The appeal will be sustained in part and the record will be remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of El Salvador, was not admitted
or paroled into the United States. At a hearing before the Immigration
Judge, the respondent conceded that he was inadmissible under section
212(a)(6)(A)(i) of the Immigration and Nationality Act,
The Immigration Judge directed the DHS to file a copy of the respondent’s administrative records. The DHS agreed to submit a copy of the USCIS’s denial letter but declined the Immigration Judge’s request to provide the respondent’s TPS application. Likening the consideration of the respondent’s TPS application to the general appellate process, the Immigration Judge determined that it was the responsibility of the DHS to provide the complete administrative record, without which he would not review the respondent’s TPS application. The Immigration Judge therefore terminated the proceedings, citing the DHS’s failure to prosecute.
II. ISSUE
The question before us is whether the DHS is required to provide the
Immigration Judge with the administrative record of an applicant’s TPS
application that was adjudicated and denied by the USCIS when the applicant
has renewed his TPS application in removal proceedings. We review this
question of law de novo.
III. ANALYSIS
As a general matter, it is the DHS’s burden in removal proceedings
to establish that an alien is removable. Section 240(c)(3)(A) of the Act,
The statute sets forth the eligibility requirements and standards for TPS. Sections 244(c)(1)–(2) of the Act. The specific procedures for applying for TPS and for seeking review of a denial of benefits are established by regulation. See section 244(b)(5)(B) of the Act.
Generally, an application for TPS is filed with the USCIS.
[1]
We have held that a TPS applicant may seek de novo review of his application by an Immigration Judge in removal proceedings. Matter of Lopez-Aldana , 25 I&N Dec. 49 (BIA 2009); Matter of Barrientos , 24 I&N Dec. 100 (BIA 2007); see also section 244(b)(5)(B) of the Act. However, we have not addressed the issue of what responsibilities, if any, the applicant or the DHS has concerning the production of the application or other documents with respect to that renewed application.
We adhere to the principles of statutory construction when interpreting
regulations.
Matter of F-P-R-
, 24 I&N Dec. 681, 683 (BIA 2008). We look
first to a regulation’s language and are required to give effect to the
unambiguously expressed intent of the regulation.
Id
.;
see also Chevron,
U.S.A., Inc. v. Natural Res. Defense Council, Inc.
, 467 U.S. 837, 842-43
(1984). Executive intent is presumed to be expressed by the ordinary meaning
of the words used.
Matter of F-P-R-
, 24 I&N Dec. at 683;
see also INS
v. Cardoza-Fonseca
,
The regulations that permit an applicant to renew his application for TPS
in removal proceedings before an Immigration Judge do not specify whether
doing so imposes on the applicant or the DHS the responsibility for the
production of documents.
However, we find no language in the applicable TPS regulations that may
reasonably be construed as requiring an applicant to file a new application
before the Immigration Judge rather than to rely on the application filed
with the USCIS. Indeed, the very term “renew” implies a procedure that
contemplates production of the previous application.
See
In practice, an applicant who is seeking to renew a previously filed TPS application often submits to the Immigration Court a copy of the application that was filed with the USCIS. [3] However, there are also cases in which, for any number of reasons, the applicant may not have copies of the TPS application and associated documents that were filed with the USCIS. In such cases, the only recourse is to secure the documents from the USCIS administrative record. This requirement also safeguards the integrity of the proceedings. Construing the regulations to require the DHS to provide the application documents ensures that, at a minimum, the Immigration Judge has access to the documents the TPS applicant already filed with the Government.
Moreover, we find no provision in the statute or regulations that prohibits
an Immigration Judge, in appropriate circumstances, from requiring the DHS
to produce the TPS application that the applicant filed with the USCIS.
An Immigration Judge has the authority to regulate the course of the
hearing and to take any action consistent with applicable law and regulations
as may be appropriate.
IV. CONCLUSION
We agree with the DHS that termination of proceedings was not proper in this case, and to that extent the appeal will be sustained. See generally Matter of W-C-B- , 24 I&N Dec. 118 (BIA 2007). Based on the above discussion, we do not agree with the Immigration Judge’s determination that the DHS is required to provide the Immigration Court with an applicant’s complete administrative record from the USCIS. However, we conclude that the Immigration Judge may, in the appropriate circumstances, require the DHS to provide the application that the applicant filed with the USCIS. A remand is necessary in this case so that the DHS may do so.
ORDER: The appeal of the Department of Homeland Security is sustained in part, the decision of the Immigration Judge is vacated, and the removal proceedings against the respondent 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.
Notes
[1] An Immigration Judge may be the initial adjudicator of a TPS application in limited circumstances not applicable here. See Matter of Lopez-Aldana , 25 I&N Dec. 49, 51 n.1 (BIA 2009), and the regulations cited therein.
[2] In contrast, other regulations specify that an application for asylum, suspension
of deportation, or special rule cancellation that is not granted by an asylum officer is referred
to an Immigration Judge.
[3] We note, however, that a respondent is not bound to file a copy of the previously filed application but may choose to file an amended or updated application with the Immigration Court.
[4] We find no language in the regulations that would preclude the DHS from submitting to the Immigration Court other documents from an applicant’s administrative record, for example, for purposes of rebutting information or evidence otherwise supplied in removal proceedings.