In re M-D-C-V

28 I&N Dec. 18

Matter of M-D-C-V-, Respondent

Interim Decision #3989

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

July 14, 2020

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 toappear 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 insidethe 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 arepresent 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 undersection 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...