Tepec-Garcia

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371
Cite as 29 I&N Dec. 371 (BIA 2025) 	Interim Decision #4152
Matter of Sarahi TEPEC-GARCIA, et al., Respondents
Decided December 19, 2025
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where neither the respondent nor the Department of Homeland Security (“DHS”)
appears at the hearing and DHS does not present evidence of removability in advance of
the hearing, the Immigration Judge does not err in terminating proceedings without
prejudice.
FOR THE RESPONDENTS: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Wesley Chai, Assistant Chief
Counsel
BEFORE: Board Panel: GOODWIN and MONTANTE, Appellate Immigration Judges;
DESAI, Temporary Appellate Immigration Judge.
DESAI, Temporary Appellate Immigration Judge:
The Department 	of 	Homeland 	Security (“DHS”) appeals 	from 	the
Immigration Judge’s April 3, 2024, decision terminating these removal
proceedings without prejudice due to DHS’ nonappearance and failure to
submit evidence of removability. The respondents have not responded to the
appeal. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
DHS served the respondents with individual notices to appear, charging
them 	each 	with 	inadmissibility 	under 	section 	212(a)(6)(A)(i) 	of 	the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i)
(2018), for being present in the United States without being admitted or
paroled. DHS issued the notices and therein set the date, time, and location
of the initial hearing. It filed the notices with the Immigration Court, thereby
initiating these proceedings. At the scheduled hearing on April 3, 2024, of
which both parties had notice, neither the respondents nor DHS appeared.
DHS also did not file any evidence establishing alienage prior to the hearing.1
1 	Although DHS asserts it filed a notice of nonappearance with the Immigration Court at
the “court’s window, per local agreement and instruction,” no such notice is in the record.
On appeal, DHS did not provide a copy of this document showing that it was filed, although

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The Immigration Judge terminated proceedings, finding that DHS did not
meet its burden to establish removability.
On appeal, DHS argues that the Immigration Judge erred in terminating
proceedings and was required by regulation to set the matter to a future
hearing to allow DHS a second opportunity to appear and provide evidence
of alienage. We disagree and conclude that, while not necessarily required,
termination 	is 	appropriate 	under 	these 	circumstances. 	See 	8 	C.F.R.
§ 1003.1(d)(3)(ii) (2025).
II. ANALYSIS
Generally, DHS has the burden to establish alienage when a respondent
has been charged with inadmissibility. See 8 C.F.R. § 1240.8(c) (2025). It
can 	do 	so 	by 	filing, 	for 	example, 	a 	Form 	I-213, 	Record 	of
Deportable/Inadmissible Alien. See Matter of Mariscal-Hernandez, 28 I&N
Dec. 666, 668 (BIA 2022) (holding that “a Form I-213 is probative of [a]
respondent’s alienage”). 	Such evidence of removability is crucial in cases
where, as here, the respondent fails to appear.
Citing 8 C.F.R. § 1240.10(d) (2025), DHS argues that the regulations
governing removal proceedings require an Immigration Judge to request
assignment of DHS counsel if removability is not established and DHS is not
present at the hearing. In essence, DHS argues that when DHS chooses not
to appear at a scheduled hearing, the Immigration Judge must continue the
case to allow DHS another opportunity to appear and present evidence
satisfying their burden to prove alienage.
DHS’ reliance on this regulation is misplaced. While 8 C.F.R § 1240.10
delineates the obligations imposed on the Immigration Judge at the hearing,
including the duty to provide rights advisals, place respondents under oath,
and take pleadings from respondents who appear in Immigration Court, this
regulation has no bearing in instances where the respondents do not appear.
Since 8 C.F.R. § 1240.10(d) specifically references 8 C.F.R. § 1240.10(c),
both provisions must be read in conjunction. The plain language of 8 C.F.R.
§ 1240.10(c) governs the pleading stage of the hearing, stating that the
Immigration Judge “shall require the respondent to plead to the notice to
appear.” 	The respondent may admit or deny the factual allegations and
it is referenced in DHS’ brief. Furthermore, DHS has not indicated that it had included
evidence of alienage attached to said notice. Notwithstanding, DHS is not relieved of its
burden to establish removability under these circumstances.

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charge(s). 8 C.F.R. § 1240.10(c). If the respondent denies the charge, or the
Immigration Judge finds that issues of law or fact remain, then 8 C.F.R.
§ 1240.10(d) is triggered, requiring the Immigration Judge to request the
assignment of DHS counsel and receive evidence as to any unresolved issues.
Read together, the provisions make clear that they implicate a contested
removability 	scenario, 	in 	which 	the 	respondent 	is 	present 	before 	the
Immigration 	Court 	contesting 	removability, 	thereby 	requiring 	the
Immigration 	Judge 	to 	request 	DHS 	counsel 	to 	present 	evidence 	of
removability. 	See 8 C.F.R. § 1240.10(c)–(d). 	In other words, 8 C.F.R.
§ 1240.10 is applicable when a respondent appears before the Immigration
Court, is given full advisals of rights, enters a plea, and after pleadings,
contested issues remain.
When neither the respondent nor DHS appear at the hearing, 8 C.F.R.
§ 	1240.10 	is 	not 	implicated 	because 	the 	respondent 	is 	not 	present.
Consequently, an Immigration Judge has no obligation to advise a respondent
who is not present at a hearing of statutory and regulatory rights and cannot
take pleadings from an absent respondent, nor can an absent respondent
contest 	removability. 	See 	8 	C.F.R. 	§ 1240.10(a), (c); 	see 	also 	INA
§ 240(b)(4), 8 U.S.C. § 1229a(b)(4) (discussing alien’s rights in removal
proceedings).
Instead, when the respondent fails to appear before the Immigration
Court at the scheduled hearing despite proper notice, the INA states that an
Immigration Judge “shall” proceed with an in absentia hearing in the
respondent’s absence. INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A) (“An
alien who, after written notice . . . does not attend a proceeding under this
section, shall be ordered removed in absentia if [DHS] establishes by clear,
unequivocal, and convincing evidence that the written notice was so provided
and that the alien is removable . . . .”). 	Congressional intent under the
unambiguous language of section 240(b)(5)(A) of the INA, 8 	U.S.C.
§ 1229a(b)(5)(A), requires that an Immigration Judge go forward with an in
absentia hearing when notice is proper and DHS proves removability under
the relevant legal standard.
The regulation at 8 C.F.R. § 1003.26 (2025), dictates requirements for in
absentia hearings. 	This provision makes clear that when a respondent fails
to appear at a scheduled hearing, the Immigration Judge “shall” order the
respondent removed in absentia if DHS establishes both that notice was
proper and the respondent is removable by clear, unequivocal and convincing
evidence. 	8 C.F.R. § 1003.26(c); accord INA § 240(b)(5)(A), 8 U.S.C.
§ 1229a(b)(5)(A).

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The law explicitly sets forth two separate and distinct scenarios: When a
respondent fails to appear at a scheduled hearing, section 240(b)(5)(A) of
the INA, 8 U.S.C. § 1229a(b)(5)(A), and 8 C.F.R. § 1003.26 apply.
However, when a respondent appears and contests removability, 8 C.F.R.
§ 1240.10 applies.2 	If the law intended that when both the respondent and
DHS fail to appear, the Immigration Judge not proceed with an in absentia
hearing and instead be required to continue the case for assignment of DHS
counsel, such procedure would be expressly included in the text of section
240(b)(5)(A) of the INA and/or 8 C.F.R. § 1003.26 or a cross-reference
contained within these provisions.3
In the instant matter, the respondents failed to appear, thereby triggering
section 240(b)(5)(A) of the INA, 8 U.S.C. § 1229a(b)(5)(A), and 8 C.F.R.
§ 1003.26, requiring the Immigration Judge to conduct an in absentia
hearing. As such, DHS was required to prove alienage, and it failed to do so.
As a result, the Immigration Judge had no evidence upon which to predicate
an in absentia order of removal and instead terminated proceedings without
prejudice.
It should be noted that DHS charged the respondents in this case under
section 212(a)(6)(A)(i) of the INA, 8 U.S.C. § 1182(a)(6)(A)(i), for being
present in the United States without being admitted or paroled. 	Therefore,
DHS, by virtue of its own charging document, was aware that alienage was
an issue and that the burden was on DHS to establish such alienage. 	See
8 C.F.R. § 1240.8(c) (stating that when a respondent is “charged as being in
the United States without being admitted or paroled, [DHS] must first
establish the alienage of the respondent”).
Finally, DHS’ position that a continuance is required would result in
judicial inefficiency, in that every case in which DHS elects not to appear
and not to provide evidence of removability prior to the hearing would
necessitate multiple hearings rather than one. Requiring Immigration Judges
2 	If DHS were correct that 8 C.F.R. § 1003.26 and 8 C.F.R. § 1240.10 must be read in
conjunction with one another, mandating that every time a respondent fails to appear, the
Immigration Judge must request the assignment of DHS counsel, the converse would also
have to be true. By this logic, when a respondent does not appear, the Immigration Judge
would be precluded from proceeding in absentia because the Immigration Judge is unable
to inform the respondent of the regulatory advisements. See 8 C.F.R. § 1240.10(a).
3 	There exist hundreds of statutes and regulations that cross-reference other provisions.
In fact, 8 C.F.R. § 1003.26 cross-references other sections, including 8 C.F.R. § 1003.15(d)
(2025) and 8 C.F.R. § 1003.25 (2025). Notably, however, 8 C.F.R. § 1003.26 and 8 C.F.R.
§ 1240.10 do not contain any language cross-referencing each other. 	Cf. 8 C.F.R.
§ 1240.10(b) (cross referencing 8 C.F.R. § 1003.27 (2025)).

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to take such action in every case would impede the timely adjudication of
cases in an overburdened system. 	Thus, the interests of judicial economy
and public resources weigh against DHS’ position.
As the proceedings were terminated without prejudice, DHS may file new
notices 	to 	appear, 	once 	again 	placing 	the 	respondents 	in 	removal
proceedings. 	Moreover, if DHS elects not to appear in future proceedings
that DHS itself initiated and scheduled, nothing precludes it from filing
evidence of removability in advance of the hearing. 	This would allow the
Immigration Judge to proceed with in absentia hearings and thereby permit
the expeditious completion of cases.
III. CONCLUSION
In sum, where neither the respondent nor DHS appears at the hearing and
DHS does not present any evidence of removability in advance of the
hearing, the Immigration Judge does not err in terminating proceedings
without prejudice. Based on the foregoing, the following order is entered.
ORDER: DHS’ appeal is dismissed.