M-D-C-V

Cite as 28 I&N Dec. 18 (BIA 2020) Interim Decision #3989
Matter of M-D-C-V-, Respondent
Decided July 14, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Under section 235(b)(2)(C) of the Immigration and Nationality Act, 8 U.S.C.
§ 1225(b)(2)(C) (2018), an alien who is arriving on land from a contiguous foreign territory
may be returned by the Department of Homeland Security to that country pursuant to
the Migrant Protection Protocols, regardless of whether the alien arrives at or between
a designated port of entry.
FOR RESPONDENT: Bashir Ghazialam, Esquire, San Diego, California
BEFORE: Board Panel: MALPHRUS and CREPPY, Appellate Immigration Judges;
MORRIS, Temporary Appellate Immigration Judge.
MALPHRUS, Appellate Immigration Judge:
In a decision dated October 11, 2019, an Immigration Judge denied the
respondent’s applications for asylum and withholding of removal under
sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality
Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2018). 1 The respondent
has appealed from that decision, requesting termination of her proceedings.
The request for oral argument is denied. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of El Salvador. On May 27, 2019,
the Department of Homeland Security (“DHS”) initially served a notice to
1
On appeal, the respondent generally states that the Immigration Judge erred in denying
her application for protection under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec.
10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708
(1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988), and she
requests that her application be granted. However, because the respondent has not
meaningfully challenged the Immigration Judge’s denial, this issue is not properly before
us. See, e.g., Matter of N-A-I-, 27 I&N Dec. 72, 73 n.1 (BIA 2017) (noting that because
the respondent did not challenge the Immigration Judge’s denial of his application for relief
under the Convention Against Torture, the issue was deemed waived).
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appear on the respondent, charging her with inadmissibility under section
212(a)(7)(A)(i) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i) (2018), as an alien
who has no valid entry document. 2 The notice to appear factually alleges
that the respondent entered the United States at or near the Otay Mesa port
of entry on May 26, 2019. A Record of Deportable/Inadmissible Alien
(Form I-213) states that, on the same day she entered, the respondent was
apprehended 20 yards north of the southern border and 3 miles west of the
Otay Mesa port of entry. The DHS returned the respondent to Mexico to
await removal proceedings under the Migrant Protection Protocols. 3
On August 29, 2019, the respondent appeared without counsel at the port
of entry for her removal hearing. At that time, the DHS served her with a
Form I-261 (Additional Charges of Inadmissibility/Deportability), which
amended the notice to appear to state that the respondent was “an arriving
alien” and that she was paroled into the United States for the sole purpose
of attending removal proceedings. The Immigration Judge sustained the
charge of inadmissibility and determined that the respondent did not establish
eligibility for relief from removal on the merits.
II. ANALYSIS
The respondent, who is now represented on appeal, argues that her
proceedings should have been terminated. Specifically, she asserts that her
return to Mexico by the DHS under the Migrant Protection Protocols
was unlawful because only arriving aliens may be returned to contiguous
countries to await proceedings under section 235(b)(2)(C) of the Act,
8 U.S.C. § 1225(b)(2)(C) (2018). She further contends that the DHS
improperly classified her as an arriving alien after apprehending her inside
2
Section 212(a)(7)(A)(i) of the Act provides, in pertinent part, as follows:
Except as otherwise specifically provided in this Act, any immigrant at the time of
application for admission—
(I) who is not in possession of a valid unexpired immigrant visa, reentry permit,
border crossing identification card, or other valid entry document required by this
Act, and a valid unexpired passport, or other suitable travel document, or document
of identity and nationality . . .
....
is inadmissible.
3
We note that on March 11, 2020, the Supreme Court granted the Government’s
application for a stay pending its filing of a petition for certiorari to contest an April 8,
2019, order from the United States District Court for the Northern District of California
granting a preliminary injunction against the DHS’s implementation of the Migrant
Protection Protocols. Wolf v. Innovation Law Lab, 140 S. Ct. 1564 (2020).
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the United States between ports of entry. For the reasons that follow, we
conclude that termination of these proceedings is inappropriate. See Matter
of J.J. Rodriguez, 27 I&N Dec. 762, 766 (BIA 2020) (“It is well settled that
an Immigration Judge may only ‘terminate removal proceedings under
[specific] circumstances identified in the regulations’ and where ‘the charges
of removability against a respondent have not been sustained.’” (alteration in
original) (quoting Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G.
2018))); cf. Matter of Herrera-Vazquez, 27 I&N Dec. 825, 831 (BIA 2020)
(following Matter of J.J. Rodriguez in holding that the Immigration Judge
had no basis to terminate the proceedings of an alien who had been returned
to Mexico under the Migrant Protection Protocols). 4
A. Inadmissibility Under Section 212(a)(7)(A)(i) of the Act
The United States Court of Appeals for the Ninth Circuit, in whose
jurisdiction this case arises, has stated that section 212(a)(7)(A)(i)(I) of the
Act “has three elements: the individual in question (1) is an immigrant
(2) who ‘at the time of application for admission’ (3) lacks a valid entry
document.” Minto v. Sessions, 854 F.3d 619, 624 (9th Cir. 2017) (citation
omitted). The respondent conceded alienage before the Immigration Judge,
and there is nothing in the record to indicate that she is not properly classified
as an “immigrant” or that she possessed a valid entry document. See Matter
of Herrera-Vazquez, 27 I&N Dec. at 833 (holding that an alien seeking
admission who cannot establish entitlement under section 101(a)(15) of the
Act, 8 U.S.C. § 1101(a)(15) (2018), to status as a nonimmigrant, such as a
tourist, student, or temporary worker, is properly deemed to be an immigrant
without the requisite travel or entry documents (citing Matter of Healy and
Goodchild, 17 I&N Dec. 22, 26 (BIA 1979))). More specifically, there is no
indication that the respondent possessed a valid entry document at the time
of her application for admission, that is, the date that she physically entered
the United States.
According to section 235(a)(1) of the Act, “An alien present in the United
States who has not been admitted or who arrives in the United States
(whether or not at a designated port of arrival . . .) shall be deemed . . . an
applicant for admission.” See also Minto, 854 F.3d at 624; Matter of Lemus,
25 I&N Dec. 734, 743 (BIA 2012) (“Congress has defined the concept of an
‘applicant for admission’ in an unconventional sense, to include not just
those who are expressly seeking permission to enter, but also those who are
4
In Matter of Herrera-Vazquez, 27 I&N Dec. at 834, we declined to address
constitutional or statutory challenges to the alien’s return to Mexico under the Migrant
Protection Protocols because he did not appear for his hearing. The respondent, through
counsel, has raised the statutory and regulatory issues we discuss here.
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present in this country without having formally requested or received such
permission . . . .” (citing section 235(a)(1) of the Act)); Matter of E-R-M-
& L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011) (stating that “the broad
category of applicants for admission . . . includes, inter alia, any alien present
in the United States who has not been admitted”). An alien’s application for
admission begins on the date he or she is present in the United States without
admission or arrives in the country, whether or not at a port of entry. See
Minto, 854 F.3d at 624 (stating that “an immigrant . . . is deemed by law
to be making a continuing application for admission by his mere presence”
in the United States). The respondent does not dispute that she meets
the definition of an applicant for admission. Accordingly, the Immigration
Judge properly found the respondent to be inadmissible under section
212(a)(7)(A)(i) of the Act. See Matter of Herrera-Vazquez, 27 I&N Dec. at
833 (stating that the alien, who was apprehended between ports of entry and
returned to Mexico under the Migrant Protection Protocols, was potentially
subject to removal under section 212(a)(7)(A)(i)(I) where the DHS proffered
evidence of his presence in the United States without a valid entry
document).
The respondent also argues that termination was appropriate because the
DHS did not initially check the box on the notice to appear classifying her as
an arriving alien at the time of service, so she did not receive proper notice
of the proceedings under section 239(a)(1) of the Act, 8 U.S.C. § 1229(a)(1)
(2018). This argument is foreclosed by Matter of Herrera-Vazquez, 27 I&N
Dec. at 827–31, where we held that a notice to appear similar to the
respondent’s provided proper notice of the nature of the proceedings and the
charge of inadmissibility, as required by section 239(a)(1) of the Act and
8 C.F.R. § 1003.15(b) (2020). See also id. at 834 & n.9 (noting that the DHS
may amend the notice to appear or file a Form I-261 with additional charges
of inadmissibility or deportability).
B. Authority To Return Aliens Pending Removal Proceedings
The DHS’s statutory authority to apply the Migrant Protection Protocols
is derived from section 235(b)(2)(C) of the Act. See Matter of J.J. Rodriguez,
27 I&N Dec. at 763–64. Contrary to the respondent’s arguments, this
authority, as it relates to her, is clearly supported by the text of the statute.
Section 235(b)(2)(C) of the Act provides that “an alien described in
[section 235(b)(2)(A)] who is arriving on land (whether or not at a designated
port of arrival) from a foreign territory contiguous to the United States” may
be returned to that territory by the DHS pending a removal proceeding under
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section 240 of the Act, 8 U.S.C. § 1229a (2018). 5 An alien described in
section 235(b)(2)(A) includes one “who is an applicant for admission,” such
as the respondent, “if the examining immigration officer determines that [the]
alien seeking admission is not clearly and beyond a doubt entitled to be
admitted.” However, section 235(b)(2)(B) makes an exception, providing
that section 235(b)(2)(A) “shall not apply” to crewmen, stowaways, or
aliens “to whom [section 235(b)(1)] applies.” Section 235(b)(2)(B)(ii) of the
Act (emphasis added). Section 235(b)(1), which sets out procedures for
expedited removal, generally refers to aliens who are either “arriving in the
United States” or are “described in [section 235(b)(1)(A)(iii)]” (namely,
those who have not been admitted or paroled and who have not established
continuous physical presence in the United States for the previous 2-year
period), if “an immigration officer determines” they are “inadmissible under
[sections 212(a)(6) or 212(a)(7)].” 6
Read together, these statutory provisions indicate Congress’ intent to
allow aliens, such as the respondent, who were apprehended by the DHS
outside of a port of entry and charged with inadmissibility under section
212(a)(7)(A)(i)(I) of the Act, to be returned to Mexico, so long as the alien
is “arriving on land . . . from a foreign territory contiguous to the United
States,” that is, Mexico. Section 235(b)(2)(C) of the Act. We note that both
section 235(a)(1), which defines an “applicant for admission,” and section
235(b)(2)(C), which provides for the return of aliens to contiguous countries,
5
The statutory reference to the Attorney General in section 235(b)(2)(C) of the Act now
refers to the Secretary of Homeland Security. See 6 U.S.C. §§ 251, 552(d) (2018); Clark
v. Martinez, 543 U.S. 371, 374 n.1 (2005).
6
In Matter of E-R-M- & L-R-M-, 25 I&N Dec. at 523–24, we determined that the DHS
retains prosecutorial discretion to place aliens into section 240 removal proceedings, even
though they may also be subject to expedited removal under section 235(b)(1)(A)(i) of the
Act. As noted, we stated in that decision that “aliens who are in the broad category of
applicants for admission, which includes, inter alia, any alien present in the United States
who has not been admitted, are entitled to section 240 removal proceedings.” Id. at 523
(citing section 235(a)(1) of the Act). However, we read the section 235(b)(2)(B) exception
to mean that the three classes of aliens referenced therein, “including those subject to
expedited removal under section 235(b)(1)(A)(i), are not entitled to a section 240
proceeding, not that these classes of aliens may not be placed in such proceedings.” Id.
We have also stated that “neither the Immigration Judges nor the Board may review a
decision by the DHS to forgo expedited removal proceedings or initiate removal
proceedings in a particular case.” Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 170 (BIA
2017) (citing Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998)). We recognize that
the Supreme Court is considering whether to grant a petition for certiorari that raises the
question whether section 235(b)(2)(B)(ii) excepts aliens to whom section 235(b)(1)
(expedited removal) could apply, or whom the DHS has actually placed in expedited
removal. See Wolf, 140 S. Ct. at 1564; Innovation Law Lab v. Nielsen, 366 F.Supp.3d 1110,
1121–26 (N.D. Cal. 2019).
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specify that the statutory provision has effect, “whether or not [the alien’s
arrival is] at a designated port of arrival.” The term “arriving” thus
encompasses an alien, like the respondent, who was apprehended 20 yards
north of the southern border, and not at a port of entry, on the same day she
crossed into the United States.
Our interpretation regarding whom the DHS can properly place into the
Migrant Protection Protocols is not without limitation. The use of the present
progressive tense “arriving,” rather than the past tense “arrived,” implies
some temporal or geographic limit, so that aliens, like the respondent, who
are encountered near the border may be subject to the contiguous territory
provision. The “use of the present progressive, like use of the present
participle, denotes an ongoing process.” Al Otro Lado v. Wolf, 952 F.3d 999,
1011–12 (9th Cir. 2020) (citation omitted) (holding that “arriving” is best
understood as a process rather than a singular moment in time); United States
v. Balint, 201 F.3d 928, 933 (7th Cir. 2000) (stating that the “use of the
present progressive tense, formed by pairing a form of the verb ‘to be’ and
the present participle, or ‘-ing’ form of an action verb, generally indicates
continuing action”). See generally United States v. Wilson, 503 U.S. 329,
333 (1992) (“Congress’ use of a verb tense is significant in construing
statutes.”). Thus, we need only decide in this case whether the respondent,
who was apprehended just inside the border upon crossing into the United
States, meets the statutory requirements for being placed into the Migrant
Protection Protocols. 7 We have little difficulty holding that, under these
facts, the respondent is properly considered to be “arriving.”
The respondent urges us to read certain regulations as narrowing the
DHS’s statutory authority to return aliens to contiguous countries pending
removal proceedings. In relevant part, 8 C.F.R. §§ 235.3(d) and 1235.3(d)
(2020) provide that “[i]n its discretion, the [DHS] may require any alien who
appears inadmissible and who arrives at a land border port-of-entry from
Canada or Mexico, to remain in that country while awaiting a removal
hearing.” (Emphasis added.) The respondent argues that these provisions
thus limit the DHS’s authority to apply section 235(b)(2)(C) of the Act to
“arriving aliens,” as that term is defined in 8 C.F.R. § 1001.1(q) (2020). 8
7
We need not address the question whether section 235(b)(2)(C) of the Act could be
applied to aliens apprehended well within the interior of the United States or long after
crossing the border.
8
As relevant here, 8 C.F.R. § 1001.1(q) currently provides:
The term arriving alien means an applicant for admission coming or attempting to
come into the United States at a port-of-entry, or an alien seeking transit through the
United States at a port-of-entry, or an alien interdicted in international or United
States waters and brought into the United States by any means, whether or not to a
designated port-of-entry, and regardless of the means of transport.
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However, we do not read 8 C.F.R. §§ 235.3(d) and 1235.3(d) as limiting the
DHS’s discretion under section 235(b)(2)(C) in that manner.
First, it is not clear, and we do not assume as the respondent does, that
section 235(b)(2)(C) of the Act or the regulations at 8 C.F.R. §§ 235.3(d) and
1235.3(d) refer to “arriving aliens,” as they are defined in 8 C.F.R.
§ 1001.1(q). “Arriving alien” is a long-standing term of art under the
immigration laws. Congress apparently has never defined the term “arriving
alien,” despite its use in immigration law for over a century. See Immigration
Act of 1917, ch. 29, § 16, 39 Stat. 874, 885 (Feb. 5, 1917) (providing for
“examination of all arriving aliens”). But while there may be uncertainty as
to the exact parameters of the term prior to its definition by the legacy
Immigration and Naturalization Service (“INS”) in 1997, it has traditionally
referred to aliens who appear at a port of entry. See, e.g., Matter of F-, 1 I&N
Dec. 90, 91 (BIA 1941) (using the term “arriving aliens” in discussing aliens
entering the United States from Canada who are questioned by immigration
inspectors).
However, when Congress enacted section 235(b)(2)(C) in 1996, it
included aliens “(whether or not at a designated port of arrival),” which is
clearly broader than the historical understanding of “arriving aliens,” as well
as the regulatory definition at 8 C.F.R. § 1001.1(q). See Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-28, Div.
C, § 302(a), 110 Stat. 3009-546, 3009-583 (“IIRIRA”). At the same time,
because section 235(b)(2)(C) is limited to aliens “arriving on land,” it
describes a class of aliens narrower than the regulation, which includes those
arriving at ports of entry generally, that is, land, air, or sea ports of entry.
This supports the interpretation that section 235(b)(2)(C) was not intended to
be limited to the definition of “arriving aliens” in 8 C.F.R. § 1001.1(q). 9
Moreover, 8 C.F.R. §§ 235.3(d) and 1235.3(d) refer to an alien “who
arrives at a land border port-of-entry,” which also differs from the definition
in 8 C.F.R. § 1001.1(q). By contrast, other regulatory sections explicitly
cross-reference the term “arriving alien,” rather than referring to an alien
9
We recognize that it is possible to interpret the phrase “an alien . . . who is arriving” in
section 235(b)(2)(C) of the Act to be equivalent to an “arriving alien.” See Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,312–13 (Mar. 6, 1997) (interim
rule) (Supplementary Information) (describing sections 240B and 241 of the Act, 8 U.S.C.
§§ 1229c and 1231 (2018), as referring to “arriving aliens”). However, we have not
addressed that phraseology and did not rely on it in determining that arriving aliens are not
eligible for voluntary departure in Matter of Arguelles-Campos, 22 I&N Dec. 811, 814 n.2
(BIA 1999). Moreover, there are sections of the Act that use the exact phrase “arriving
alien.” See, e.g., sections 235(a)(2), (c)(1) of the Act. For our purposes, we need only
consider section 235(b)(2)(C) of the Act and, for the reasons discussed above, we do not
read it as being limited to “arriving aliens,” as that term is defined in 8 C.F.R. § 1001.1(q).
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“who arrives.” See, e.g., 8 C.F.R. § 1240.1(d) (2020) (“An Immigration
Judge may allow only an arriving alien to withdraw an application for
admission.”). In this regard, we find the regulations to be ambiguous as to
whether the definition of an “arriving alien” in 8 C.F.R. § 1001.1(q) is
implicated by 8 C.F.R. §§ 235.3(d) and 1235.3(d).
Second, even if 8 C.F.R. § 1001.1(q) is implicated, it is unclear whether
8 C.F.R. §§ 235.3(d) and 1235.3(d) foreclose the DHS’s discretion
with respect to aliens arriving between ports of entry because those
regulations are permissive, not proscriptive. They provide that the DHS
“may” require certain aliens who arrive at a land port of entry to remain in
Canada or Mexico, but they do not limit that practice only to those aliens.
See Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018) (stating that “the
word ‘may[]’ . . . implies discretion” (citation omitted)); cf. United States
v. Cisneros-Resendiz, 656 F.3d 1015, 1020 & n.10 (9th Cir. 2011) (noting
that 8 C.F.R. § 1240.1(d) permits an Immigration Judge to grant a request
for withdrawal “only if the alien . . . is an arriving alien,” as defined by
8 C.F.R. § 1001.1(q) (emphasis added)).
Nor do 8 C.F.R. §§ 235.3(d) and 1235.3(d) prohibit the DHS from
returning other aliens “arriving on land (whether or not at a designated port
of arrival)” to contiguous countries, consistent with the DHS’s broader
statutory authority. Rather, the regulations are silent as to whether aliens
who illegally enter the United States between ports of entry may be returned
to contiguous countries. We should be reluctant to read a regulation as
foreclosing the DHS from taking action that the statute clearly gives it the
authority and discretion to carry out, consistent with its duty to enforce the
immigration laws. See generally Oregon Rest. & Lodging Ass’n v. Perez,
816 F.3d 1080, 1087 (9th Cir. 2016) (noting the “crucial distinction between
statutory language that affirmatively protects or prohibits a practice and
statutory language that is silent about this practice”).
“To determine whether a regulation’s meaning is truly ambiguous, [we]
must ‘carefully consider the text, structure, history, and purpose of a
regulation.’” Sec’y of Labor, U.S. Dep’t of Labor v. Seward Ship’s Drydock,
Inc., 937 F.3d 1301, 1307 (9th Cir. 2019) (quoting Kisor v. Wilkie, 139 S. Ct.
2400, 2415 (2019) (stating that courts afford deference to regulations that are
“genuinely ambiguous” pursuant to Auer v. Robbins, 519 U.S. 452 (1997)));
see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). In
making our determination that 8 C.F.R. §§ 235.3(d) and 1235.3(d) are
ambiguous, we have also considered the history of the regulations.
Prior to Congress’s enactment of section 235(b)(2)(C) in the IIRIRA, the
INS argued in a case before the Board that its long-standing practice was to
require some aliens arriving at land border ports of entry to await exclusion
proceedings in Canada or Mexico. Matter of Sanchez, 21 I&N Dec. 444,
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449–54, 459–62, 464–66 (BIA 1996) (en banc) (terminating exclusion
proceedings where the INS had returned an alien to Mexico and suggesting
that the practice should be addressed by regulation or statutory change).
In 1996, Congress broadened the class of aliens who could be returned
to Mexico to await proceedings beyond that historical practice by (1) in
section 240(a)(2) of the Act, eliminating the distinction between exclusion
and deportation proceedings, (2) defining “applicants for admission” more
broadly than aliens who had previously been placed into exclusion
proceedings, see Matter of Rosas, 22 I&N Dec. 616, 620–21 (BIA 1999) (en
banc), and (3) providing that aliens who are “arriving on land (whether or not
at a designated port of arrival)” from a foreign contiguous territory may be
returned to that country pending removal proceedings in section 235(b)(2)(C)
of the Act. (Emphasis added.)
In subsequently proposing the regulation at 8 C.F.R. § 235.3(d), the INS
stated that “an applicant for admission arriving at a land border port-of-entry
and subject to a removal hearing under section 240 of the Act may be
required to await the hearing in Canada or Mexico.” Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of
Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 445 (Jan. 3,
1997) (Supplementary Information). 10 The supplementary information also
explained that the INS was permitted to return aliens arriving at land border
ports of entry to contiguous countries, consistent with its prior practice under
previously existing statutes and regulations. Id. (“This simply adds to statute
and regulation a long-standing practice of the Service.”).
In light of the ambiguity in the regulations, we decline to find that the
INS’s reference to agency practice then limits the DHS’s practice now,
particularly without an explicit statement to that effect. Doing so would
greatly restrict the Government’s ability to utilize the Migrant Protection
10
We note that the proposed language of 8 C.F.R. § 235.3(d) was not changed in the
interim final rule, and the text of that regulation and of the parallel regulation at 8 C.F.R.
§ 1235.3(d) has remained unchanged. See 62 Fed. Reg. at 10,357; Aliens and Nationality;
Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9823, 9837 (Feb. 28,
2003) (duplicating 8 C.F.R. § 235.3 at 8 C.F.R. § 1235.3). However, the regulatory
definition of an “arriving alien” has been amended since 1997. See, e.g., Eligibility of
Arriving Aliens in Removal Proceedings To Apply for Adjustment of Status and
Jurisdiction To Adjudicate Applications for Adjustment of Status, 71 Fed. Reg. 27,585,
27,585 (May 12, 2006) (clarifying the applicability of the “arriving alien” definition to
paroled aliens); Amendment of the Regulatory Definition of Arriving Alien, 63 Fed. Reg.
19,382, 19,383 (Apr. 20, 1998) (amending the definition to, inter alia, clarify that “an alien
coming from abroad to a port in the United States may be considered an applicant for
admission regardless of whether he or she subjectively desires admission”) (Supplementary
Information).
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Protocols at the southern border because the clear majority of inadmissible
aliens apprehended there are located between ports of entry. See U.S.
Customs & Border Prot., CBP Enforcement Statistics Fiscal Year 2020,
https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics (last
visited July 14, 2020).
In sum, we read the regulations at 8 C.F.R. §§ 235.3(d), 1235.3(d), and
1001.1(q) as not imposing such a severe restriction on the DHS’s statutory
authority under section 235(b)(2)(C) of the Act and thus on the reach of
the Migrant Protection Protocols. This is particularly so given the
ambiguity as to whether 8 C.F.R. § 1001.1(q) was intended to limit the
DHS’s authority under the Act. 11 We therefore conclude that the regulations
do not preclude the DHS from applying the Migrant Protection Protocols to
aliens apprehended between ports of entry. Consequently, we hold that under
section 235(b)(2)(C) of the Act, an alien who is arriving on land from a
contiguous foreign territory may be returned by the DHS to that country
pursuant to the Migrant Protection Protocols, regardless of whether the alien
arrives at or between a designated port of entry.
C. Arriving Alien Classification
The respondent also argues that in improperly classifying her as an
“arriving alien,” the DHS deprived her of her constitutional, statutory, and
regulatory rights, including her right to apply for asylum. In her view, only
“arriving aliens” may be returned to Mexico to await removal proceedings
under section 235(b)(2)(C), and she contends that the DHS cannot establish
that she is an “arriving alien” under 8 C.F.R. § 1001.1(q). She claims that
she was deprived of her rights because the DHS improperly returned her to
11
In contrast, other immigration regulations have clearly and unambiguously limited the
reach of certain statutory language. For example, section 208(d)(6) of the Act, which
addresses frivolous applications for asylum, states that “[i]f the Attorney General
determines that an alien has knowingly made a frivolous application for asylum and the
alien has received the notice [from the Immigration Judge], the alien shall be permanently
ineligible for any benefits under this Act.” The word “frivolous” means there is “no
rational argument based on the law or evidence in support of [a] claim.” Black’s Law
Dictionary 668 (6th ed. 1990). However, the regulation at 8 C.F.R. § 1208.20 (2020) limits
the application of section 208(d)(6) by directing that an asylum applicant is subject to that
provision “only if a final order . . . specifically finds that the alien knowingly filed a
frivolous asylum application. . . . [A]n asylum application is frivolous if any of its material
elements is deliberately fabricated.” Thus, the regulation only permits a finding that an
application is “frivolous” where the alien deliberately presents a claim whose material
elements are false. See Matter of Y-L-, 24 I&N Dec. 151, 153–55 (BIA 2007) (discussing
the statutory and regulatory framework for a frivolousness finding and noting that the
regulation provides procedural safeguards and limitations).
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Mexico and that termination of the proceedings is therefore appropriate.
However, the question whether the respondent was properly classified as an
arriving alien is separate from whether she could be returned to Mexico
consistent with the Migrant Protection Protocols.
It is not necessary to decide whether the DHS properly classified the
respondent as an “arriving alien” upon her return for her asylum hearing,
because she has not established that she was prejudiced in these proceedings
by that classification, or by her return to Mexico under the Migrant Protection
Protocols. See Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018)
(“As a general rule, an individual may obtain relief for a due process violation
only if he shows that the violation caused him prejudice, meaning the
violation potentially affected the outcome of the immigration proceeding.”);
Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (requiring the alien to
demonstrate “prejudice, which means that the outcome of the proceeding
may have been affected by the alleged [due process] violation”). 12 An alien
who is properly classified as an arriving alien faces significant limitations on
his or her options within the immigration system, but the respondent has not
shown that being classified as an arriving alien has impacted her immigration
proceedings in any meaningful way.
First, any distinction regarding the burden of proof on “arriving aliens”
in removal proceedings was not at issue in the proceedings below. By statute,
an applicant for admission bears the burden to establish that he or she is
“clearly and beyond doubt entitled to be admitted to the United States and is
not inadmissible.” Section 240(c)(2)(A) of the Act; see also Matter of
Herrera-Vazquez, 27 I&N Dec. at 831–32. The regulatory burden of proof
for arriving aliens is substantively the same as the statutory burden of proof
for applicants for admission. See 8 C.F.R. § 1240.8(b) (2020). 13 For aliens
charged as being in the United States without being admitted or paroled,
the DHS must first establish the respondent’s alienage and then, “unless
the respondent demonstrates by clear and convincing evidence that he
or she is lawfully in the United States pursuant to a prior admission,” the
12
Since the Ninth Circuit’s legal standard for sufficient prejudice—whether the outcome
“may have been” affected by the alleged due process violation—is controlling in this case,
we need not consider if we would, instead, articulate the standard as “is likely to be.”
13
The regulation at 8 C.F.R. § 1240.8(b) provides in full:
Arriving aliens. In proceedings commenced upon a respondent’s arrival in the
United States or after the revocation or expiration of parole, the respondent must
prove that he or she is clearly and beyond a doubt entitled to be admitted to the United
States and is not inadmissible as charged.
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same regulatory burden applies. 8 C.F.R. § 1240.8(c); 14 see also section
240(c)(2)(B) of the Act; Matter of Herrera-Vazquez, 27 I&N Dec. at 832 n.7.
Here, however, the respondent conceded alienage, and there was no
indication that she was lawfully in the United States pursuant to a prior
admission. Therefore the DHS’s “arriving alien” classification did not result
in prejudice to the respondent as regards this burden of proof.
The respondent filed applications for asylum, withholding of removal,
and protection against the Convention Against Torture, all of which
the Immigration Judge denied on the merits after a hearing and
consideration of the respondent’s testimony and evidence. Classification
as an “arriving alien” does not affect the standards of proof for those
applications. See Matter of Herrera-Vazquez, 27 I&N Dec. at 834. Nor does
such classification impact the right to appeal the removal order. See section
240(c)(5) of the Act; 8 C.F.R. § 1240.15 (2020). Because the respondent
was able to apply for any relief for which she was eligible and has had an
opportunity to appeal, she has not been deprived of due process rights in this
regard. Cf. Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 171 (BIA 2017)
(concluding that the respondents were not deprived of due process rights
when the DHS bypassed the credible fear interview process and initiated
removal proceedings, because they would “receive a full and fair hearing on
their application by the Immigration Judge”).
The respondent argues that, as a practical matter, aliens subjected to the
Migrant Protection Protocols do not have adequate access to counsel. Aliens
in immigration proceedings have the statutory and regulatory privilege to be
represented by counsel of their choice, at no expense to the Government.
See sections 240(b)(4)(A), 292 of the Act, 8 U.S.C. §§ 1229a(b)(4)(A), 1362
(2018); 8 C.F.R. §§ 1003.16(b), 1240.3, 1240.11(c)(1)(iii) (2020). While
many aliens may, as a general matter, face practical impediments to obtaining
counsel, including being in detention or lacking financial resources (whether
or not detained), these circumstances do not alone constitute a due process
violation. Rather, an alien must show more to establish a violation of due
process. We have held that the lack of counsel does not amount to a denial
of due process, so long as it was not unfair or did not demonstrably prejudice
14
The regulation at 8 C.F.R. § 1240.8(c) provides in full:
Aliens present in the United States without being admitted or paroled. In the case
of a respondent charged as being in the United States without being admitted or
paroled, the Service must first establish the alienage of the respondent. Once
alienage has been established, unless the respondent demonstrates by clear and
convincing evidence that he or she is lawfully in the United States pursuant to a prior
admission, the respondent must prove that he or she is clearly and beyond a doubt
entitled to be admitted to the United States and is not inadmissible as charged.
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the respondent. Matter of Santos, 19 I&N Dec. 105, 107–10 (BIA 1984).
There is no such prejudice here.
We recognize that under controlling Ninth Circuit law, “before [an alien]
continues without counsel in an immigration proceeding for which there is a
statutory right to counsel, due process mandates that ‘there must be a
knowing and voluntary waiver of the right to counsel,’ which requires that
the [Immigration Judge] ‘(1) inquire specifically as to whether [the alien]
wishes to continue without a lawyer; and (2) receive a knowing and voluntary
affirmative response.’” Zuniga v. Barr, 946 F.3d 464, 471 (9th Cir. 2019)
(quoting Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004)).
Moreover, where “an alien . . . shows that he has been denied the statutory
right to be represented by counsel in an immigration proceeding[, he] need
not also show that he was prejudiced by the absence of the attorney.” Id.(quoting Montes-Lopez v. Holder, 694 F.3d 1085, 1093–94 (9th Cir. 2012)).
In this regard, the record reflects that the respondent stated at her initial
hearing that she wished to represent herself. Nevertheless, the Immigration
Judge provided her a list of free legal services and advised her to try to obtain
counsel. When the respondent appeared alone at the resumed proceedings,
the Immigration Judge asked her again if she wanted to represent herself, to
which she replied, “Yes.” Under these circumstances, the respondent waived
the right to counsel.
Although the respondent appeared pro se below, she is now represented
and has the benefit of counsel on appeal. She has not pointed to any specific
aspects of her claims for relief that were prejudiced as a result of the absence
of counsel at her hearing. See Matter of Santos, 19 I&N Dec. at 110
(declining to find prejudice where the respondent was represented by counsel
on appeal). On this record, therefore, we do not find that the respondent was
deprived of due process by a lack of counsel.
The respondent has not established that she was prevented by her
classification as an arriving alien from applying for any other form of relief
for which she is eligible. She correctly notes that aliens charged as “arriving
aliens” are subject to additional restrictions on eligibility for adjustment of
status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2018), and for
voluntary departure in lieu of being subject to removal proceedings under
section 240B(a)(1) of the Act, 8 U.S.C. § 1229c(a)(1) (2018). See section
240B(a)(4) of the Act; Matter of Silitonga, 25 I&N Dec. 89, 92 (BIA 2009).
However, there is no indication that the respondent would have been eligible
for either form of relief. See 8 C.F.R. §§ 1240.26(b)(1), 1245(a)(1)(ii)
(2020).
In sum, the respondent received a full and fair hearing before the
Immigration Judge and was able to apply for the relief she requested. On
this record, there is no basis to determine that the outcome of the proceeding
30
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was impacted by the “arriving alien” classification or by her return to Mexico
under the Migrant Protection Protocols. Consequently, we are not persuaded
that the respondent suffered any prejudice or that termination of the
proceedings is appropriate. See Colmenar, 210 F.3d at 971; Matter of S-O-G-
& F-D-B-, 27 I&N Dec. 462, 465–68 (A.G. 2018); see also Matter of J.J.
Rodriguez, 27 I&N Dec. at 766. 15
D. Respondent’s Applications for Relief
We turn now to the respondent’s applications for asylum and withholding
of removal. The record reflects that she received one threatening phone call
while living in El Salvador and left the country approximately 9 days later.
A few months after her departure, she learned that a threatening note was left
at her home when she left. We affirm the Immigration Judge’s determination
that the respondent did not establish eligibility for the requested relief
because the harm she suffered in El Salvador, considered in the aggregate,
does not rise to the level of past persecution, see Matter of V-F-D-, 23 I&N
Dec. 859, 863 (BIA 2006), and she has not shown a well-founded fear of
future persecution, see Matter of A-E-M-, 21 I&N Dec. 1157, 1159–60 (BIA
1998). 16
In reaching our determination, we have considered the Ninth Circuit’s
case law, which is controlling in this case. Specifically, in Duran-Rodriguez
v. Barr, 918 F.3d 1025, 1028–29 (9th Cir. 2019), the court concluded that
two threats, one over the phone and another in person, did not rise to the level
of persecution. See also Lim v. INS, 224 F.3d 929, 936–37 (9th Cir. 2000)
15
We also point out that termination would render the proceedings ultra vires, and the
respondent would not be in a position to seek the relief she requested here. See Matter of
Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745, 752 n.11 (BIA 2020).
16
The Immigration Judge determined that the pro se respondent was not harmed on
account of her membership in a particular social group based on the social groups he
articulated for her below. On appeal, the respondent, through counsel, attempts to advance
newly articulated social groups and argues that the Immigration Judge did not sufficiently
consider whether she established a claim for asylum on the basis of religion. See section
101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (2018). We need not resolve whether
the respondent’s fear was based on her membership in a valid particular social group, her
religion, or another protected ground because, even assuming that a nexus to a protected
ground exists, she has not established eligibility for asylum. INS v. Bagamasbad, 429 U.S.
24, 25 (1976) (per curiam) (“As a general rule courts and agencies are not required to make
findings on issues the decision of which is unnecessary to the results they reach.”); Matter
of A-B-, 27 I&N Dec. 316, 340 (A.G. 2018) (explaining that if an application is fatally
flawed in one respect, an Immigration Judge or the Board need not examine the remaining
elements of the asylum claim), abrogated on other grounds by Grace v. Whitaker, 344
F. Supp. 3d 96, 127 (D.D.C. 2018), appeal docketed sub nom. Grace v. Barr, No. 19-5013
(D.C. Cir. Jan. 30, 2019).
31
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(concluding that the alien’s mail and telephone threats alone did not amount
to past persecution). The Ninth Circuit further explained that it has “been
most likely to find persecution where threats are repeated, specific and
‘combined with confrontation or other mistreatment.’” Duran-Rodriguez,
918 F.3d at 1028 (citation omitted). Death threats alone can constitute
“persecution in only a small category of cases, and only when the threats are
so menacing as to cause significant actual suffering or harm.” Id. (quoting
Lim, 224 F.3d at 936). The Immigration Judge reasonably concluded that the
record does not establish that the two threats the respondent received were
sufficiently severe to rise to the level of persecution, particularly since she
was unaware of one of them before she departed. See Matter of V-F-D-,
23 I&N Dec. at 863.
We are unpersuaded by the respondent’s argument that the threat that she
received was sufficiently severe to constitute past persecution because she
was aware of others who had received such threats and what had happened
to them. As explained above, the Immigration Judge reasonably considered
the threatening phone call that the respondent received and the note that was
left at her home in concluding that these acts were not sufficiently severe to
rise to the level of persecution. The Immigration Judge was not required to
interpret the evidence in the manner the respondent advocated. See Don
v. Gonzales, 476 F.3d 738, 744 (9th Cir. 2007).
The respondent argues that the Immigration Judge erred in not
considering that she was also watched by gang members while in El
Salvador. Although the respondent testified that young men observed her,
she did not know why and has not shown any connection to the threats she
received. Further, assuming arguendo that this was considered as part of the
Immigration Judge’s analysis whether the respondent’s past experiences rise
to the level of persecution, we are unpersuaded that remand for further
consideration of this testimony would alter the outcome of the Immigration
Judge’s determination in this regard. See 8 C.F.R. § 1003.1(d)(3)(iv) (stating
that we may remand proceedings if additional fact-finding is needed); see
also Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992).
The respondent’s assertion that the Immigration Judge erred by not
considering that gang members came to her home searching for her after she
left El Salvador does not relate to past persecution. Further, the record
reflects that the respondent did not know if the men who inquired about her
are part of the group that threatened her. Her claim that the threat she
received deprived her of liberty and the ability to practice her religion at
church and caused her severe economic deprivation is unpersuasive. 17
17
We recognize that the inability to practice one’s religion may constitute persecution, but
to the extent that the alleged harm here related to the respondent’s religion, it does not rise
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The record does not support a conclusion that the sole threat the
respondent claimed she received and the one she was unaware of before her
departure were sufficiently severe to rise to the level of persecution. Since
she has not established that she suffered past persecution, she does not have
a rebuttable presumption of a well-founded fear of persecution upon return.
8 C.F.R. § 1208.13(b)(1) (2020).
In considering whether the respondent has established a well-founded
fear of persecution, we affirm the Immigration Judge’s determination that
she has not met her burden to establish that authorities of the Salvadoran
Government are unable or unwilling to control the private actors she fears.
See Melkonian v. Ashcroft, 320 F.3d 1061, 1064–65 (9th Cir. 2003)
(“Eligibility for asylum based on a well-founded fear of future persecution
requires [applicants] to . . . credibly testif[y] that they genuinely fear
persecution by their government, or forces their government is unable or
unwilling to control . . . .”); see also Matter of A-B-, 27 I&N Dec. 316, 337
(A.G. 2018) (stating that for an applicant to prevail on an asylum claim based
on the violent conduct of a private actor, she “must show more than
‘difficulty . . . controlling’ private behavior” (citations omitted)), abrogated
on other grounds by Grace v. Whitaker, 344 F. Supp. 3d 96, 127 (D.D.C.
2018), appeal docketed sub nom. Grace v. Barr, No. 19-5013 (D.C. Cir. Jan.
30, 2019). 18
to that level. See Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (finding no past
persecution where although the alien’s “religious practice and work was not free from
interruption or harassment, she was not prevented from practicing her religion”). See
generally Guo v. Sessions, 897 F.3d 1208, 1215 (9th Cir. 2018) (“In evaluating religious
persecution claims, we have previously focused on how substantially the government (or
other individuals that it was unable or unwilling to control) have restrained a petitioner’s
practice of his or her religion.”).
18
We recognize that Matter of A-B- was abrogated by the United States District Court for
the District of Columbia in Grace v. Whitaker. However, we are not bound by a published
decision of a Federal district court, even in cases arising in the same district, unless it relates
to the parties involved in the case. See Matter of Robles, 24 I&N Dec. 22, 28 (BIA 2006);
Matter of K-S-, 20 I&N Dec. 715, 718–19 (BIA 1993). In addition, an appeal of the district
court’s decision in Grace is currently pending. See Matter of L-E-A-, 27 I&N Dec. 581,
589 n.1 (A.G. 2019). In any case, the injunction in Grace only relates to credible fear
determinations in expedited removal proceedings and does not govern asylum and
withholding of removal claims, which are at issue in this case. See Gonzales-Veliz v. Barr,
938 F.3d 219, 227–28 (5th Cir. 2019). But see Juan Antonio v. Barr, 959 F.3d 778, 790
n.3, 792 (6th Cir. 2020) (finding the reasoning in Grace persuasive and remanding for
further proceedings as to the social group analysis). Moreover, we follow the decisions of
the Attorney General unless they are reversed by circuit court authority. See Matter of
Jimenez-Santillano, 21 I&N Dec. 567, 571 (BIA 1996); see also Matter of E-L-H-, 23 I&N
Dec. 814, 815 (BIA 2005). We therefore consider our application of Matter of A-B- in this
case to be appropriate.
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Based on the foregoing, we agree with the Immigration Judge that the
respondent has not met her burden to establish eligibility for asylum.
8 C.F.R. § 1208.13(a). Since the respondent has not satisfied the burden
of proof required for asylum, it follows that she has not satisfied the
higher standard of proof required for withholding of removal. See 8 C.F.R.
§ 1208.16(b) (2020); see also Pedro-Mateo v. INS, 224 F.3d 1147,
1150 (9th Cir. 2000). Given our disposition of the appeal, we need not
address the respondent’s remaining arguments regarding her eligibility for
asylum and withholding of removal. See INS v. Bagamasbad, 429 U.S. 24,
25 (1976) (per curiam); Matter of A-B-, 27 I&N Dec. at 340. Accordingly,
the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $799 for each day the respondent is in violation. See section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).
34