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Department of Justice
A 201-279-745
Date of this notice: 2/10/2016
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DOrt.JtL C
t1/VL)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Guendelsberger, John
Userteam: Docket
Date:
FEB 1 0 2016
APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF OHS:
Matthew Hanson
Assistant Chief Counsel
Cite as: Randeep Singh Toor, A201 279 745 (BIA Feb. 10, 2016)
IN REMOVAL PROCEEDINGS
A201279745
For the reasons set forth above, the following orders are entered.
ORDER: The Department of Homeland Security's appeal is sustained.
FORT
2
Cite as: Randeep Singh Toor, A201 279 745 (BIA Feb. 10, 2016)
RESPONDENT
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)
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IN REMOVAL PROCEEDINGS
FILE NO.
A 201-279-745
DATE:
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Pro Se
Assistant ChiefCounsel
Department of Homeland Security
1705 East Hanna Road
Eloy, Arizona 851 3 1
While obligatory for arriving aliens determined by an immigration officer to be inadmissible pursuant to
INA 212(a)(6)(C) or 212(a)(7) and who have expressed an intention to apply for asylum or a fear of
persecution, referral for an asylum officer interview is permissive in its discretionary application to "certain
other aliens" who have not been admitted or paroled and who have not established 2 years of continuous
physical presence in the United States. INA 235(b)(J )(A)(iii); Matter ofX-K-, 23 l&N Dec. 731, 732
(BlA 2005) (noting that two classes of aliens are defined by INA 23 S(b)(I) - "arriving aliens" and
"certain other aliens;" that each is subject to different statutory requirements; and that while "arriving
aliens" are ineligible for bond the restriction does not apply to "ce1tain other aliens"); 1-1.R. Conf. Rep. No.
I04-828, at 209 ( 1996) (the provisions requiring referral of certain arriving aliens who have expressed a
fear of persecution or an intent to apply for asylum "may be applied, in the sole and unreviewable discretion
of the Attorney General, to an alien who has not been paroled or admitted into the United States and who
cannot affirmatively show to an immigration officer that he or she has been continuously present in the
United States for a period of 2 years immediately prior to the date of the officer's determination");
Designating Aliens For Expedited Removal, 69 Fed. Reg. 48,877, 48,879 (Aug. II, 2004) (INA 235(b)(I)
applies to two categories of aliens; "arriving aliens" who "will be interviewed by an asylum officer who
will determine whether the alien has a credible fear as defined in section 235(b)(J)(B)(v)," and "ce,tain
other aliens" to whom the expedited removal provisions of INA 235(b)( I ) may be applied "in his or her
sole and unreviewable discretion").
2
It is well settled that Congressional use of the word "shall" conveys an imperative, both generally and in
[so] referred." INA 235(b)(l)(B)(i).3 "If the alien is unable to proceed effectively in English,
and if the asylum officer is unable to proceed competently in a language chosen by the alien, the
asylum officer shall arrange for the assistance of an interpreter in conducting the interview.'
8 C.F.R. 208.30(d)(5). .(/'the asylum officer finds that the respondent has a credible fear of
persecution,4 then the asylum officer refers the case for further consideration to an immigration
judge by issuing a Form I-862, Notice to Appear ("NTA"), against the respondent. 5 INA
235(b)(l)(B)(i)-(ii); 8 C.F.R. 235.6(a)(l)(ii); H.R. Conf. Rep. No. 104-828, at 209 (1996). 6
An Immigration Judge has the authority to terminate removal proceedings which are
improvidently initiated, such as in this case. See id. When the DHS fails to follow the
regulations dictating its procedures in issuing an NTA, the Immigration Judge can without a
motion from the parties terminate the case. See Matter ofKanagasundram, 22 I&N Dec. 963, 964
(BIA 1 999) (finding that an Immigration Judge can terminate a case when DBS does not follow
mandated procedures in the regulations, which have the force of Jaw) affirmed by Matter ofE-R-M,
25 I&N Dec. 520, 520 (BIA 20 1 1 ) . 7 While the DBS exercises its prosecutorial discretion when it
decides whether to commence removal proceedings, see E-R-M-, 25 I&N Dec. at 520, and what
charges to lodge against a respondent, once the Notice to Appear is filed with the Court, the
Immigration Judge is authorized and directed to regulate the course of those proceedings. 8
Matter a/Avetisyan, 25 I&N Dec. 688, 694 (9th Cir. 2012).
I Waived (A/DH
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CERTIFICATE OF SERVICE
served by: Mail (M) Personal Service (P)
Another example of an Immigration Judge's authority to terminate proceedings over DHS's objection is
when "OHS cannot sustain the charges or in other specific circumstances consistent with the law and
applicable regulations." Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 20 1 2).
8
The Immigration Judges' ability to exercise independent judgment and discretion in terminating a case as
improvidently begun is analogous to the Court's requirement to exercise its independent judgment and
discretion in administrative closure proceedings. See 8 C.F.R. I 003. I O(b) ("Jn deciding the individual
cases before them, and subject to the applicable governing standards, immigration judges shall exercise
their independent judgment and discretion and may take any action consistent with their authorities under
the Act and regulations that is appropriate and necessary for the disposition of such cases."); Matter of
Avetisyan, 25 I&N Dec. 688, 693-94 (9th Cir. 20 1 2) (discussing an Immigration Judge's authority to
administratively close a case based on the Judge's independent judgment and discretion without a motion
from either party).