Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012): Departing Voluntarily Does Not Compel Termination of Proceedings

Matter of Sanchez-Herbert


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

On November 2, 2012, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012) [PDF version]. In the decision, the Board held that it is not appropriate to terminate removal proceedings for an alien who fails to appear because he departed the United States if the alien received proper notice of the hearing and is removable as charged. The decision was cited to recently in Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017), which we discuss in a full article on site [see article].

In this article, we will discuss the facts and procedural history of Matter of Sanchez-Herbert, the Board's reasoning and decision, and what the lasting precedential value of the decision.

Factual and Procedural History: 26 I&N Dec. 43, 43 (BIA 2012)

The respondent in the case was a native and citizen of Mexico. On October 16, 2007, the DHS filed a notice to appear charging the respondent as inadmissible under section 212(a)(6)(A)(i) (2006) of the Immigration and Nationality Act (INA) as an alien who procured a benefit under the INA through fraud or misrepresentation of a material fact. On November 27, 2007, the respondent appeared at a master calendar hearing. At the master calendar hearing, the respondent conceded that he was removable. The Immigration Judge subsequently “granted the respondent a series of continuances relating to an application for adjustment of status and other issues.”

On February 3, 2011, the respondent's counsel appeared at a master calendar hearing without the respondent being present. The respondent's counsel moved to terminate removal proceedings on the basis that the respondent had voluntarily returned to Mexico. The Department of Homeland Security (DHS) opposed the motion, moving for the Immigration Judge to instead proceed with the hearing in absentia (without the respondent being present). The Immigration Judge granted the respondent's motion and terminated removal proceedings. The basis for the Immigration Judge's decision was that she lacked jurisdiction over the respondent on account of the fact that he was no longer in the United States.

Board's Analysis and Conclusions: 27 I&N Dec. at 44-45

The Board began by holding that the Immigration Judge erred in terminating proceedings on the basis that she lacked jurisdiction. The Board stated that “[t]he respondent's departure from the United States after he was placed in proceedings did not divest the Immigration Judge of jurisdiction over the proceedings.” Citing to 8 C.F.R. sections 1003.14(a), 1239.1(a) (2012), the Board held that once a notice to appear has been filed with the Immigration Court, jurisdiction vests in the Court. Accordingly, the Board held that “[a]s long as the allegations and charges stated in the notice to appear continue to be applicable, the alien remains subject to removal.” To this effect, the Board cited to its published decision in Matter of Brown, 18 I&N Dec. 324, 325 (BIA 1982) [PDF version].

The Board cited to section 240(b)(5)(E) to explain that “[a]n alien does not 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 excerpted the relevant portion of section 240(b)(5)(E): “[S]tating that the statutory provisions regarding in absentia proceedings 'shall apply to all aliens placed in [removal] proceedings.'” In Matter of Luis, 22 I&N Dec. 747, 752-54 (BIA 1999) [PDF version], the Board held that an alien's departure from the United States while a Government's appeal was pending neither constituted a constructive withdrawal of the appeal nor necessarily mooted the appeal.

The Board cited to section 240(b)(5) of the INA and 8 C.F.R. 1003.26 (2012) in explaining that the purpose of in absentia proceedings in general “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.” Citing to Matter of Lopez-Barrios, 20 I&N Dec. 203, 204 (BIA 1990) [PDF version], the Board explained that in in absentia proceedings, the Immigration Judge should terminate removal proceedings if the DHS does not meet its burden of establishing that the alien is removable and should issue a final order of removal if the DHS meets its burden.

The Board explained that in Matter of Brown, 18 I&N Dec. at 325, it held that an Immigration Judge erred when he terminated deportation proceedings where the alien departed the United States while the proceedings were pending and then returned. The Board stated in Matter of Brown that the alien could not “compel the termination of deportation proceedings … merely by effecting a departure and reentry.” While noting that Matter of Brown involved an alien in deportation proceedings who departed and then returned, it found that the case, and by extension its holding, raised “the same institutional concerns” as those at play in the instant case.

The “acknowledge[d]” the Immigration Judge's noting that the respondent had in fact departed the United States regardless of whether he had been ordered to do so. But the board held that it is “problematic” to allow for an alien's departure to divest an Immigration Judge of authority over removal proceedings or to compel the termination of proceedings over the objections of DHS. The Board explained that this “would permit him to dictate the outcome of proceedings and avoid the consequences of a formal order of removal.” The Board noted that these consequences may include inadmissibility after being ordered removed and ineligibility for certain forms of immigration relief for a period of 10 years (citing to section 212(a)(9)(C)(i)(II) and 240(b)(7) of the INA).

The Board explained that once jurisdiction vests with the Immigration Judge, neither party may compel the termination of removal proceedings without a proper reason. For example, in Matter of W-C-B-, 24 I&N Dec. 118, 122 (BIA 2007) [PDF version], the Board held that the DHS may only move to dismiss proceedings on the basis of a ground set forth in the regulations once jurisdiction rests with an Immigration Judge. The Board further held that the Immigration Judge may terminate proceedings when the DHS cannot sustain the charges brought “or in other circumstances consistent with the law and other applicable regulations.”

Regarding the instant case, the Board held that “[t]here was no basis to terminate proceedings in this case.” Accordingly, it held that the Immigration Judge should have granted the DHS's request to proceed with the hearing in absentia. In the event that the DHS sustained its burden and established that the respondent was removable as charged, the Board held that the Immigration Judge should have entered a final order of removal. In Matter of Singh, 21 I&N Dec. 427, 435 (BIA 1996) [PDF version], the Board held that “[a]s long as the [DHS} chooses to prosecute the applicant's proceedings to a conclusion, the Immigration Judges and this Board must order the applicant excluded and deported if the evidence supports such a finding” (note that the Board's holding with regard to excludability and deportability applies in this instance to removal proceedings).

Accordingly, the Board sustained the DHS's appeal, vacated the Immigration Judge's decision, and reinstated removal proceedings against the respondent. The DHS remanded the record for entry of a new decision consistent with its opinion.


Matter of Sanchez-Herbert makes clear that an alien cannot compel the termination of removal proceedings by departing the United States. In such an event, the case may continue in absentia, and a final order of removal may be entered so long as the DHS sustains its burden of establishing that the alien is removable as charged.

An alien in removal proceedings should work with an experienced immigration attorney throughout the entire process. An experienced immigration attorney may provide expert case-specific guidance based on the specific charges and facts involved.