Introduction: Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017)

On November 2, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017) [PDF version]. In Matter of J-A-B- & I-J-V-A-, the Board held that Immigration Judges do not have the authority to terminate removal proceedings for the purpose of giving an arriving alien the opportunity to present an asylum claim to the Department of Homeland Security (DHS) in the first instance.

In this article, we will examine the facts and procedural history of Matter of J-A-B- & I-J-V-A-, the Board’s reasoning and decision, and what the new precedent will mean going forward for arriving aliens seeking asylum in the United States.

To learn more about asylum in the United States, please see our full selection of articles [see category]. To read about more BIA precedent decisions, please see our directory of articles [see article].

Factual and Procedural History: 27 I&N Dec. at 168-69

On September 15, 2017, the respondents — both natives and citizens of Mexico — applied for admission into the United States at the San Ysidro, California, port of entry. During inspection, both respondents expressed that they had a fear of returning to Mexico and they requested asylum in the United States. Because the respondents had arrived without any valid entry documentation, they could have been placed in expedited removal proceedings under section 235(b)(1)(A)(ii) of the INA. However, the DHS instead opted to grant the respondents parole and released them into the United States as parolees on September 19, 2015.

Subsequent to their release, the DHS served both respondents with notices to appear. The notices to appear charged the respondents with inadmissibility under section 212(a)(7)(A)(i)(I) of the INA, which renders inadmissible an alien without valid entry documentation. A finding of inadmissibility would render the respondents subject to removal. The notices to appear triggered removal proceedings under section 240 of the INA.

It is important to note here that had the respondents not been granted parole and had instead been found to be subject to expedited removal, they would have undergone a non-adversarial “credible fear interview” with the United States Citizenship and Immigration Services (USCIS) regarding their claimed fear of persecution in Mexico. However, because the respondents were paroled into the United States and then issued notices to appear, they were subject to section 240 removal proceedings before an Immigration Judge, where they would still have the opportunity to present their claims for asylum, but in an adversarial setting.

In section 240 removal proceedings, the respondents filed a motion requesting that the removal proceedings be terminated without prejudice. The respondents argued that because they had been paroled into the United States by the DHS in lieu of being placed in expedited removal proceedings, they should be given the opportunity to present their persecution claim to an asylum officer prior to applying for asylum in removal proceedings before an Immigration Judge. The DHS opposed the respondents’ motion to terminate removal proceedings.

The Immigration Judge decided to grant the respondents’ motion and terminate the removal proceedings without prejudice. The Immigration Judge reasoned that the respondents should be given the opportunity to present their asylum claims to the DHS in the first instance. The Immigration Judge based this decision on his finding that the respondents had received “unequal treatment” regarding their persecution claims as a result of their being paroled into the United States. Specifically, the Immigration Judge asserted that the respondents would have been afforded two opportunities to present their asylum claims had they been placed in expedited removal proceedings instead of one opportunity after being paroled in section 240 removal proceedings. The Immigration Judge also took the position that the termination of section 240 removal proceedings to allow the respondents to apply for asylum in the first instance with the DHS would promote fairness in allowing the respondents to present their claims in a non-adversarial interview with the DHS. Finally, the Immigration Judge determined that terminating proceedings in the instant case would help preserve the resources of the Immigration Court in potentially negating the need for any removal proceedings at all (in the event that the respondents were granted asylum by DHS).

The DHS appealed from the decision to the BIA.

Board’s Critique of Immigration Judge’s Finding on Entitlement to Apply for Asylum with DHS: 27 I&N Dec. at 169 n.2

Before examining the Board’s analysis and conclusions, it is worth looking at footnote 2 to its decision. Here, the Board found that the Immigration Judge’s conclusion that the respondents would have had a “right” to having their asylum claims considered twice had they been placed in expedited removal proceedings was inaccurate. To this effect, the Board explained that Immigration Judges may place aliens who are in the United States illegally in removal proceedings before they apply for asylum. The Board explained that under section 208(b)(3)(C) of the INA, “[o]nly unaccompanied alien children have a statutory right to initial consideration of an asylum application by the DHS…”

Board’s Analysis and Conclusions: 27 I&N Dec. at 169-72

On appeal, the Board would agree with the DHS and hold that the Immigration Judge erred in terminating removal proceedings for lack of a legal basis to do so. In the forthcoming paragraphs, we will examine the Board’s analysis and conclusions.

The Board cited to its published decision in Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012) [PDF version] [see article], the Board held that the only grounds on which an Immigration Judge may base a decision terminating removal proceedings are a finding that “the DHS cannot sustain the charges [of removability] or in other specific circumstances consistent with the law and applicable regulations.” Following its citation to Matter of Sanchez-Herbert, the Board explained that “[n]either the [INA] nor the regulations dictate that arriving and paroled aliens should be given two opportunities to have an asylum application considered-first, before a DHS asylum officer and later, before an Immigration Judge.”

The Board explained that, under 8 C.F.R. 208.2(a), the DHS has initial jurisdiction over an asylum application made by an alien who is physically present in the United States or who is seeking admission at a port of entry. Conversely, the Board explained that, under 8 C.F.R. 208.2(b), 1208.2(b) (2017), the Immigration Judge has the responsibility to adjudicate asylum applications filed in Immigration Court during removal proceedings after the DHS initiates such proceedings by filing a notice to appear with the Immigration Court. See also 8 C.F.R. 1240.11(c)(3) (2017). In Matter of W-Y-U-, 27 I&N Dec. 17, 19 (BIA 2017) [see article], the Board held that “[t]he role of the Immigration Courts and the Board is to adjudicate whether an alien is removable and eligible for relief from removal in cases before DHS.”

In Matter of P-L-P-, 21 I&N Dec. 887 (BIA 1997) [PDF version], the Board held that an Immigration Judge erred in terminating deportation proceedings in a case where the alien had previously filed for asylum with the then-Immigration and Naturalization Service (INS). In reaching that conclusion, the Board cited to 8 C.F.R. 208.2(b) in holding that Immigration Judges have “exclusive jurisdiction” over asylum applications filed after a charging document has been served and filed with the Immigration Court.

The Board explained that the decision of the DHS to commence removal proceedings involves the exercise of prosecutorial discretion on the part of DHS. In Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011) [PDF version], the Board held that the DHS has discretion to initiate section 240 removal proceedings against an alien who may also be subject to expedited removal under section 235(b)(1)(A)(i). In Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998) [PDF version], the Board held that the decision to institute deportation proceedings involves prosecutorial discretion and is not reviewable by either Immigration Judges or the BIA.

The Board took the position that terminating removal proceedings to either require the DHS to initiate expedited removal proceedings or to refrain from seeking to remove the respondents altogether in order to provide the respondents an opportunity to file for asylum with the DHS impinges on its authority to choose when, or if, to place an alien in removal proceedings. To this effect, the Board cited to its decision in Matter of Roussis, 18 I&N Dec. 256, 258 (BIA 1982) [PDF version], where it held that an Immigration Judge’s sua sponte (on his own accord) decision to remand an alien’s adjustment of status application to INS impinged on the INS’s “exclusive authority to control the prosecution of [removable] aliens.”

In a separate matter addressed in footnote 4 of the instant decision, the Board noted that the DHS had paroled the respondents into the United States for the purpose of placing them in section 240 removal proceedings. Accordingly, it held that the Immigration Judge’s decision impinged on the DHS’s parole authority. To this effect, it cited to its decision in Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771, 777 n.5 (BIA 2012) [PDF version], wherein it held that “parole authority is … exercised exclusively by the DHS.”

The Board added that, under 8 C.F.R. 235.3(b)(4), 1235.3(b)(4), even if the respondents had been placed in expedited removal proceedings and determined to have had a credible fear of persecution, they would not have automatically been granted asylum. Instead, the respondents would have been placed in section 240 removal proceedings an Immigration Judge would have considered their claims for asylum and/or withholding of removal from the beginning. On this basis, the Board rejected the respondents’ assertion that their not having been afforded credible fear interviews deprived them of the opportunity to establish their fear of returning to Mexico.

For the foregoing reasons, the Board concluded that the Immigration Judge erred in terminating removal proceedings for the purpose of allowing the respondents to make an initial application for asylum with the DHS. The Board found that the Immigration Judge does not have the authority to terminate section 240 removal proceedings on this basis. As a result, the Board concluded that the Immigration Judge had a duty to adjudicate the respondent’s case once the DHS initiated section 240 removal proceedings.

The Board sustained the DHS’s appeal, vacated the Immigration Judge’s decision, and remanded the record to the Immigration Judge for further proceedings consistent with the Board’s opinion.

Conclusion

The Board’s new precedent precludes an Immigration Judge from terminating removal proceedings to allow a respondent to file for asylum with the DHS rather than with an Immigration Judge. In general, the Board’s position is that an Immigration Judge may only terminate proceedings if the DHS has not submitted sufficient evidence to establish that a respondent is removable. In the asylum context, this decision will be most relevant in cases where a respondent or respondents were subject to expedited removal but were instead placed in regular section 240 removal proceedings.

If an alien intends to bring an asylum claim, he or she should consult with an experienced immigration attorney immediately regardless of whether he or she will be filing for asylum affirmatively or as a defense from removal. Any alien facing civil immigration charges should consult with an experienced immigration attorney for case-specific guidance.