BIA holds respondent’s voluntary return to Mexico caused Immigration Judge to err in terminating removal proceedings

In a recent case from the Board of Immigration Appeals (BIA), the BIA has held that where an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.

The alien departed the U.S. to Mexico once removal proceedings were instituted against him. His attorney filed a motion with the court to terminate the proceedings, since he left the country. The Department of Homeland Security (DHS) objected to the motion and wanted to proceed in absentia (in absent) of the alien. The immigration judge sided with the alien and the case was terminated. DHS appealed this decision, wherein the BIA sided with DHS and concluded that it was an error to terminate the proceedings.

The BIA reasoned that under the Immigration and Nationality Act (INA), an alien does not need to be physically in the United States for the Immigration Judge to retain jurisdiction over pending proceedings and to conduct an in absentia hearing. In fact, the purpose of in absentia proceedings is to determine whether the DHS can meet its burden to establish that the alien, who did not appear, received proper notice and is removable as charged. If the DHS meets its burden, the Immigration Judge should issue an order of removal; if it cannot, the Immigration Judge should terminate proceedings.

In prior cases, the BIA has held that an Immigration Judge erred in terminating proceedings where the alien departed the United States while proceedings were pending and then returned, concluding that the alien “cannot compel the termination of deportation proceedings . . .merely by effecting a departure and reentry.” Although other cases involved deportation proceedings in a case where the alien returned to the United States and appeared in court, the same institutional concerns are raised in the respondent’s removal proceedings. We acknowledge the Immigration Judge’s observation that the practical result in this case is that the respondent has, in fact, departed the United States, regardless of whether he has been ordered to do so. However, allowing an alien who leaves the country while in proceedings to divest the Immigration Judge of jurisdiction over his case, or to otherwise unilaterally compel termination of proceedings over the DHS’s objection, would permit him to dictate the outcome of the proceedings and avoid the consequences of a formal order of removal. Such consequences include, for example, inadmissibility to the United States after having been ordered removed and ineligibility for certain forms of relief for a period of 10 years.

Once jurisdiction vests with the Immigration Judge, neither party can compel the termination of proceedings without a proper reason for the Immigration Judge to do so.There was no basis to terminate proceedings in this case. Instead, the Immigration Judge should have granted the DHS’s request to proceed with an in absentia hearing and, if the DHS met its burden to establish removability based on the facts and the evidence, entered an order of removal. For the reasons discussed above, we conclude that the Immigration Judge erred in terminating proceedings. Accordingly, the DHS’s appeal will be sustained and the record will be remanded for further proceedings.

What can be gained from the recent BIA decision is that regardless of whether one voluntarily leaves the country, if both the person facing removal and the government do not agree that the person can voluntarily leave, then the case needs to be handled like any other removal case. The consequences for not defending against an involuntary departure are too great for a person to let DHS reach that determination and ban a person for upwards of 10 years. This case is a reminder that it is important to be aware of making the case that one should not be banned from the U.S. simply because of leaving the U.S. and trying to abandon the proceedings.