BIA: In absentia removal ok when noncitizen leaves USA

By University of Denver Sturm College of Law

Dec 18, 2012

The BIA held that removal proceedings should continue in absentia even if the noncitizen respondent voluntarily left the United States after proceedings had begun. Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA Nov. 2, 2012) (Malphrus, Creppy, and Liebowitz). Board member Malphrus wrote the panel’s decision.

This case involved an individual who conceded removability as someone present in the United States without having been admitted or paroled. INA § 212(a)(6)(A)(i). After several continuances, Sanchez-Herbert’s attorney provided the IJ with evidence indicating that Sanchez-Herbert had voluntarily left the country. Matter of Sanchez-Herbert, 26 I&N Dec. at 43. At counsel’s request and over DHS’s motion to proceed in absentia, the IJ terminated proceedings on the basis that the court lacked jurisdiction over a person not in the United States. Matter of Sanchez-Herbert, 26 I&N Dec. at 43, 44.

Can Sanchez-Herbert be present in the United States without having been admitted or paroled—the section of the INA that DHS claimed he violated—if he was no longer present in the United States? Apparently yes, because the Board had no difficulty concluding that the IJ erred in terminating proceedings. “The respondent’s departure from the United States after he was placed in proceedings did not divest the Immigration Judge of jurisdiction over the proceedings,” the Board wrote. Indeed, “[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.” Matter of Sanchez-Herbert, 26 I&N Dec. at 44.

Though it’s not a surprising decision, it’s nonetheless interesting because neither the INA nor the regulations specifically discuss physical presence as a requirement for the immigration court to have jurisdiction. The INA grants the IJ the power to “conduct proceedings for deciding the inadmissibility or deportability of an alien,” and those proceedings may be conducted in absentia if the noncitizen is served with the Notice to Appear. INA §§ 240(a)(1), (b)(5). Another statutory provision requires that the noncitizen “shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable.” INA § 240(b)(5)(A). Removal, of course, is defined as a violation of INA§ 212 or § 237. The CFR simply adds that “[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.” 8 CFR § 1003.14(a).

By concluding that it’s possible for Sanchez-Herbert to be removable even though he’s no longer in the country, the BIA effectively concluded that he could be deemed to be physically present in the United States as a matter of law even though everyone agrees he’s not physically present in the United States. Doing otherwise, the BIA explained, would allow the noncitizen to control the outcome of proceedings. In the Board’s words, “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.” Matter of Sanchez-Herbert, 26 I&N Dec. at 45. That, the BIA seems to think, is untenable.

Yet it’s not untenable to take the position that now that Sanchez-Herbert is out of the country the BIA and IJ lack jurisdiction to consider a claim that he was wrongly removed even if he had a legitimate claim to make. The BIA has long taken the position that it lacks jurisdiction to consider claims raised by people who are not in the United States. The “post-departure” bar, as this much-criticized interpretation is known, “impos[es] a limitation on our jurisdiction to entertain motions filed by aliens who ha[ve] departed the United States. We have reiterated that construction of the rule in an unbroken string of precedents extending over 50 years, consistently holding that reopening is unavailable to any alien who departs the United States after being ordered removed.” Matter of Armendarez-Mendez, 24 I&N Dec. 646, 648 (BIA 2008). This is because, as the Board added, “the physical removal of an alien from the United States is a transformative event that fundamentally alters the alien’s posture under the law. Indeed, the ultimate purpose of a removal proceeding is, with respect to removable aliens, precisely to bring about such a physical departure.” Matter of Armendarez-Mendez, 24 I&N Dec. at 655-56.

The end result is that an IJ can order removed a person who is no longer in the country but cannot provide relief to someone who is not in the country no matter how sound the claim may be. Maybe its decision in Sanchez-Herbert will make the Board reconsider this statement: the ultimate purpose of removal proceedings, it seems, isn’t to ensure that a person physically leaves the United States; it’s to ensure that the person leaves and is ordered to do so.

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