Introduction: Matter of Brown, 18 I&N Dec. 324 (BIA 1982)

On September 30, 1982, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Brown, 18 I&N Dec. 324 (BIA 1982) [PDF version]. The Board made three holdings in Matter of Brown, all of which remain good law today.

First, the Board held that once deportation proceedings are commenced against an alien, the proceedings are not nullified by the absence of the alien from the United States provided that the allegations and charges stated in the Order to Show Cause remain applicable. Although the deportation proceedings at issue in Matter of Brown have since been supplanted by removal proceedings, the this holding of Matter of Brown remains good law. The Board relied upon this portion of the decision extensively in Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012) [PDF version], with regard to the failure of an alien to appear for removal proceedings due to his or her departure from the United States. Please see our full article on Matter of Sanchez-Herbert to learn more [see article].

Second, the Board held that the then-Immigration and Naturalization Service (now replaced by the Department of Homeland Security) was not required to issue a new Order to Show Clause in the event that an alien who was under deportation proceedings, had departed the United States, and upon his or her return had remained deportable on the same grounds stated in the Order to Show Cause.

Third, the Board held that a lawful permanent resident who applied for a waiver of deportability under former section 212(c) of the Immigration and Nationality Act [see article] and then subsequently departs from the United States may resume his or her application for section 212(c) relief upon return.

In this article, we will examine the factual and procedural history of Matter of Brown and the Board’s analysis and conclusions. Additionally, we will examine some subsequent case law citing to Matter of Brown since its issuance over three decades ago.

Factual and Procedural History: 18 I&N Dec. 324, 324-25

The respondent, a native and citizen of Jamaica, was admitted to the United States on May 27, 1973, as a lawful permanent resident.

On June 3, 1980, the respondent was convicted for possession of marijuana. The INS issued an Order to Show Cause charging the respondent with deportability under then-section 241(a)(11) of the INA for having been convicted of a narcotics violation.

In deportation proceedings, the respondent conceded deportability and sought a waiver of deportation under the former section 212(c) of the INA on May 11, 1981.

Deportation proceedings resumed on May 5, 1982. The respondent testified that on August 19, 1981, he had departed the United States to visit Jamaica. On the basis of this departure and return, the Immigration Judge ruled that the INS was required to institute new deportation proceedings against the respondent by issuing a new Order to Show Cause. Furthermore, the Immigration Judge ruled that, by virtue of his departure, the respondent had abandoned his application for former section 212(c) relief.

The INS appealed from the Immigration Judge’s decision to the BIA.

Board’s Analysis and Conclusions: 18 I&N Dec. at 325

The Board concluded that the Immigration Judge erred by terminating deportation proceedings in the case.

The Board explained that “[d]eportation proceedings previously commenced against an alien are not nullified by his temporary absence from the United States.” Citing to regulations in effect at the time, it noted that the purpose of the Order to Show Cause was to (1) notify the alien of the charges against him or her and (2) that the alien must show why he or she should not be deported. The Board then held that “[a]s long as the allegations and charges stated in the Order to Show Cause continue to be applicable, the alien remains subject to deportation.” By effect, the Board concluded that an alien cannot compel the termination of deportation proceedings through effecting a departure and reentry.

In accord with its analysis, the Board held that the INS was not required to issue a new Order to Show Cause when an alien departs the United States and subsequently reenters, provided that the alien remained deportable on the same grounds stated in the Order to Show Cause. However, the Board added that the Government may issue a new Order to Show Cause when appropriate.

Based on its above conclusions, the Board held that the respondent did not necessarily abandon his application for former section 212(c) relief through his departure and reentry. It stated that “[r]equiring him to file another application would serve no useful purpose in this case.”

Subsequent Citations

In the following subsections, we will examine citations to Matter of Brown in subsequent published decisions and relevant agency guidance.

Matter of Luis, 22 I&N Dec. 747 (BIA 1999)

In Matter of Luis, 22 I&N Dec. 747, (BIA 1999) [PDF version], the Board applied Matter of Brown to a case where an alien in deportation proceedings had departed during the pendency of an appeal by the INS. The Board cited to Brown in holding that the regulations did “not contemplate the conferment upon an alien of the power to effectuate the withdrawal of the [INS’s] appeal by departing from the United States during the pendency of the appeal before this Board.” 22 I&N Dec. at 752. In short, the Board concluded that, if the Government has a pending appeal from an Immigration Judge’s decision in deportation proceedings, the departure of the alien from the United States does not result in the constructive withdrawal of the Government’s appeal. The Board also cited to Matter of Brown in holding that the alien’s departure also did not necessarily moot the Government’s appeal. See 27 I&N Dec. at 754.

Interestingly, a concurring/dissenting opinion in Matter of Luis took the position that Matter of Brown was not as relevant as the majority believed because the departure at issue in Matter of Brown was temporary whereas the departure at issue in Matter of Luis was presumably permanent. See generally 27 I&N Dec. at 762-66. However, as we will see in the next subsection, the Board found the decision in Matter of Luis relevant in a more recent published decision.

Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012)

In Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012), the Board discussed both Matter of Brown and Matter of Luis in detail in the context of section 240 removal proceedings, finding that the analysis in both decisions on the effect of departures on proceedings remains good law today. Please see our full article on Matter of Sanchez-Herbert to read about the decision in detail [see article]. In this section, we will briefly explain how the Board relied upon Matter of Brown and Matter of Luis.

First, the Board found that an Immigration Judge had erred in finding that she had been divested of jurisdiction over removal proceedings by the respondent’s voluntarily departing to Mexico. At 26 I&N Dec. at 44, the Board cited to Matter of Brown in stating that “[a]s long as the allegations and charges stated in the notice to appear continue to be applicable, the alien remain subject to removal.” Note here that the issuance of the Notice to Appear commences removal proceedings under current law similarly to how the Order to Show Cause commenced proceedings under the laws in effect when Matter of Brown was decided.

The Board cited to Brown again, this time addressing the differences between the cases but reaffirming the relevance of Matter of Brown. The Board explained that in Matter of Brown it stated that an alien “cannot compel the termination of deportation proceedings … merely by effecting a departure and reentry.” Id. The Board then explained that “[a]lthough Brown 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.” Id. Here, the Board made two points. First, the passage shows that Matter of Brown is relevant in the context of section 240 removal proceedings. Second, the Board found that Matter of Brown was relevant where an alien departs in the midst of proceedings but does not return to the United States subsequent to the departure. This is noteworthy since, as we discussed, the respondent in Matter of Brown reentered the United States and appeared for a hearing subsequent to his departure.

It is worth noting that Matter of Sanchez-Herbert included a citation to Matter of Luis as well. In support of its holding in Matter of Sanchez-Herbert that “[a]n 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,” the Board cited to Matter of Luis, 747, 752-54, wherein it had held that the alien’s departure during the pendency of the Government’s appeal did not necessarily constitute a withdrawal or mooting of the appeal. 26 I&N Dec. at 44.

Unpublished Second Circuit Decisions

In 2010, the United States Court of Appeals for the Second Circuit, which has appellate jurisdiction over New York, Connecticut, and Vermont, applied Matter of Brown in two separate unpublished decisions. Although neither of these decisions constitute precedent, they are worth examining to understand how appellate courts apply Matter of Brown.

In Faiz v. Holder, 363 Fed.Appx. 834 (2d Cir. Feb. 8, 2010), a native and citizen of Pakistan sought review of a BIA decision affirming the decision of an Immigration Judge to deny her motion to reopen proceedings. The petitioner offered several arguments in favor of her position that the Second Circuit should grant her petition for review, all of which were rejected. One of her arguments was that her motion for reopening should have been granted because she was at the time moving from the United States to Canada to apply for political asylum and had no intent of returning to the United States when the final order of removal in absentia was issued. However, the Second Circuit cited to Matter of Brown in holding that an alien cannot compel the termination of deportation procedures by effecting a departure, and that her argument did not support her assertion that the motion for reopening should be granted.

In Singh v. Holder, 360 F3d.Appx. 37 (2d. Cir. Aug. 18, 2010), a citizen of India argued on various grounds that a final order of exclusion issued against him in absentia should be rescinded. The petitioner argued that the Immigration Judge who issued the final order of exclusion had been divested of his authority over proceedings because the petitioner had departed the United States prior to his being excluded. The Second Circuit first noted that the petitioner had failed to establish that he had departed the United States prior to his scheduled hearing date. However, it cited to Matter of Brown in explaining that even if the petitioner had departed the United States prior to his hearing date, the Immigration Judge would not have been divested of authority over the case.

Conclusion

Matter of Brown and subsequent decisions make clear that an alien’s departure during removal proceedings does not compel the termination of charges against the alien. Matter of Brown itself addressed the issue in the context of a case where the alien departs during the pendency of proceedings but returns for a scheduled hearing date. However, subsequent cases have applied the reasoning in Matter of Brown to instances where the departure in question was presumably not temporary. Also of note, Matter of Brown made clear that a departure does not necessarily result in the abandonment of an application for section former 212(c) relief where the alien subsequently reenters the United States. Although former section 212(c) was subsequently replaced in the immigration laws, it is still available in limited cases where charges are based on certain pre-1997 convictions [see article].

An alien facing any type of removal proceedings should consult with an experienced immigration attorney throughout the process for case-specific representation and guidance. An experienced attorney will be able to provide case-specific counsel based on all relevant rules and regulations.