J.J. RODRIGUEZ

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Matter of J.J. RODRIGUEZ Rodriguez, Respondent
Decided January 31, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where the Department of Homeland Security returns an alien to Mexico to await an
immigration hearing pursuant to the Migrant Protection Protocols and provides the alien
with sufficient notice of that hearing, an Immigration Judge should enter an in absentia
order of removal if the alien fails to appear for the hearing.
FOR RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	David A. Landau, Senior
Litigation Coordinator
BEFORE: Board Panel: MALPHRUS, Acting Chairman; CREPPY and CASSIDY, Board
Members.
MALPHRUS, Acting Chairman:
In a decision dated May 15, 2019, an Immigration Judge terminated the
respondent’s removal proceedings without prejudice. 	The Department of
Homeland Security (“DHS”) has appealed from this decision. 	While the
appeal was pending, we requested and received supplemental briefing from
the DHS and amici curiae. 1 	The appeal will be sustained, the removal
proceedings will be reinstated, and the record will be remanded for further
proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Honduras who applied for
admission to the United States at the San Ysidro, California, port of entry.
On April 3, 2019, the DHS served him with a notice to appear, charging him
with removability under section 212(a)(7)(A)(i)(I) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2018), as an alien who, at
the time of admission, did not possess valid entry documents. The notice to
appear contains the respondent’s signature, acknowledging that the DHS had
personally served it on him. 	It informed the respondent that his removal
hearing would be held on May 15, 2019, at 12:30 p.m. in the San Diego
1 	We acknowledge and appreciate the briefs submitted by the DHS and amici.

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Immigration 	Court 	and 	listed 	the 	respondent’s 	address 	as 	Domicilio
Conocido, Tijuana, Baja California, Mexico.
The DHS also provided the respondent with a document entitled “Migrant
Protection Protocols Initial Processing Information” (“MPP Sheet”). 	The
MPP 	Sheet, 	which 	is 	written 	in 	the 	English 	language, 	instructed 	the
respondent to arrive at a specific location at the San Ysidro port of entry at
9:00 a.m. on May 15, 2019, so that he could be transported to the San Diego
Immigration Court for his removal hearing. 	A copy of the MPP Sheet was
provided to the respondent in the Spanish language, and both versions of this
document contain the signature of the respondent that appears on the notice
to appear.
The DHS returned the respondent to Mexico pursuant to the Migrant
Protection Protocols to await his removal hearing. 	The respondent did not
appear for this hearing, and the DHS requested that the Immigration Judge
enter an in absentia order of removal. The DHS argued that the respondent
was provided with adequate notice of his hearing and that the MPP Sheet
advised the respondent of the procedure for obtaining transportation to his
hearing. Citing due process concerns, the Immigration Judge concluded that
the DHS did not provide the respondent with sufficient notice of his hearing
and terminated the respondent’s removal proceedings without prejudice. The
Immigration Judge did not allow the DHS to present evidence regarding the
respondent’s removability.
II. ANALYSIS
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.” Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G. 2018).
We agree with the DHS that the Immigration Judge erred in terminating these
proceedings.
In 	January 	2019, 	the 	DHS 	implemented 	the 	Migrant 	Protection
Protocols. 2 	Under these protocols, the DHS has the discretion to return
“certain foreign individuals entering or seeking admission to the U.S. from
Mexico—illegally or without proper documentation— . . . to Mexico . . . for
the duration of their immigration proceedings.” 	U.S. Dep’t of Homeland
Security, Migrant Protection Protocols (Jan. 24, 2019), https://www.dhs.
2 	On January 25, 2019, the Secretary of the DHS issued a memorandum providing
guidance for implementing the Migrant Protection Protocols. 	See Memorandum from
Kirstjen M. Nielsen, Sec’y of the DHS, Policy Guidance for Implementation of the Migrant
Protection Protocols (Jan. 25, 2019), https://www.dhs.gov/sites/default/files/publications/
19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf.

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gov/news/2019/01/24/migrant-protection-protocols; 	see 	also 	Innovation
Law Lab v. McAleenan, 924 F.3d 503, 507 (9th Cir. 2019) (per curiam)
(granting the DHS’s motion for a stay of a preliminary injunction of the
Migrant Protection Protocols).
The statutory basis for the Migrant Protection Protocols is section
235(b)(2)(C) of the Act, 8 U.S.C. § 1225(b)(2)(C) (2018), which provides
that, in the case of an alien “who is arriving on land . . . from a foreign
territory contiguous to the United States,” the DHS “may return the alien to
that territory pending” a removal proceeding under section 240 of the Act,
8 U.S.C. § 1229a (2018). 	The regulations at 8 C.F.R. §§ 235.3(d) and
1235.3(d) (2019) additionally state that 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. Such alien shall be considered detained for a proceeding within
the meaning of section 235(b) of the Act and may be ordered removed in absentia by
an immigration judge if the alien fails to appear for the hearing.
The DHS complied with the Act and the regulations when it returned the
respondent to Mexico to await his removal hearing. 3
“Due 	process 	requires 	that 	the 	alien 	be 	provided 	with 	notice 	of
proceedings and an opportunity to be heard.” Matter of G-Y-R-, 23 I&N Dec.
181, 186 (BIA 2001). This notice must “be reasonably calculated to apprise
the alien of his or her scheduled hearing and the immigration charges.” Id.
(citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950)). “[A]ctual notice will always suffice.” Id. In this case, the level of
notice the respondent received satisfied the requirements of due process.
As noted, the notice to appear in this case was personally served on the
respondent. 	It placed him on notice of the “time and place at which [his]
proceedings [would] be held,” informed him of the charges against him, and
warned him of the consequences of failing to appear for his hearing. Sections
239(a)(1)(D), (G) of the Act, 8 U.S.C. § 1229(a)(1)(D), (G) (2018). There is
no indication that the notice to appear was deficient. 	See Matter of
Bermudez-Cota, 27 I&N Dec. 441, 445 (BIA 2018); 8 C.F.R. § 1003.15(c)
(2019). Finally, the DHS’s filing of the notice to appear with the San Diego
Immigration Court vested that court with adjudicatory authority over the
respondent’s removal proceedings. 	See Matter of Bermudez-Cota, 27 I&N
Dec. at 444–45; see also Matter of Rosales Vargas and Rosales Rosales,
27 I&N Dec. 745, 751–52 (BIA 2020).
3 To the extent that amici argue that the Migrant Protection Protocols, section 235(b)(2)(C)
of the Act, and the governing regulations are unconstitutional, “[i]t is well settled that we
lack jurisdiction to rule on the constitutionality of the Act and the regulations we
administer.” Matter of Fuentes-Campos, 21 I&N Dec. 905, 912 (BIA 1997).

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In addition to the notice to appear, the DHS provided the respondent with
an MPP Sheet, which specified when and where the respondent needed to
arrive at the port of entry so that he could be transported to his hearing. The
Immigration Judge expressed concern that the respondent may not have
understood the instructions contained in the MPP Sheet, but there is no
adequate basis to assume that he did not. 	Both the MPP sheet and the
courtesy copy of the MPP Sheet in the Spanish language contain the
respondent’s 	signature, 	and 	there 	is 	no 	requirement 	that 	an 	alien 	in
immigration proceedings be provided with a notice to appear or any other
document in their native language. See Flores-Chavez v. Ashcroft, 362 F.3d
1150, 1155 n.4 (9th Cir. 2004) (“Current law does not require that the Notice
to Appear . . . be in any language other than English.” (citation omitted));
Matter of D-R-, 25 I&N Dec. 445, 458 n.10 (BIA 2011) (rejecting an alien’s
argument that “the DHS’s documentary evidence was inadmissible because
it had not been translated into [the alien’s] native language” since “no such
requirement 	exists 	in 	immigration 	proceedings”), 	remanded 	on 	other
grounds, Radojkovic v. Holder, 599 F. App’x 646, 648 (9th Cir. 2015). 	In
light of the foregoing, we do not agree with either the Immigration Judge or
amici that the level of notice the respondent received in this case was
insufficient to satisfy the requirements of due process. 4
Accordingly, where, as here, the DHS returns an alien to Mexico to await
an immigration hearing pursuant to the Migrant Protection Protocols and
provides the alien with sufficient notice of that hearing, an Immigration
Judge should enter an in absentia order of removal if the alien fails to appear
for the hearing. 	See Matter of Sanchez-Herbert, 26 I&N Dec. 43, 44 (BIA
2012) (“An 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.”). 5
Amici raise due process concerns and describe practical difficulties that
other aliens have faced after they were returned to Mexico pursuant to the
Migrant Protection Protocols. 	Although amici assert that these aliens had
difficulty obtaining and communicating with counsel while awaiting their
hearings 	in 	Mexico, 	their 	cases 	are 	not 	before 	us. 	See, 	e.g., 	INS
v. Phinpathya, 464 U.S. 183, 188–89 n.6 (1984) (noting that statements by
4 	In the absence of sufficient notice, an alien may file a motion to rescind the in absentia
removal order and reopen the proceedings. 	Section 240(b)(5)(C) of the Act; 8 C.F.R.
§ 1003.23(b)(4)(ii) (2019); see also Flores-Chavez, 362 F.3d at 1156 (describing such
motions as a “critical safeguard” that protect “aliens who did not receive adequate notice”).
5 	Immigration Judges may also continue removal proceedings if they determine that there
is “good cause” to do so—for example, where additional information needs to be gathered
to determine whether an in absentia order of removal is appropriate. Matter of L-A-B-R-,
27 I&N Dec. 405, 407 (A.G. 2018).

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counsel are not evidence and are not entitled to evidentiary weight). Amici’s
arguments 	and 	anecdotal 	evidence 	do 	not 	establish 	that 	the 	Migrant
Protection Protocols, as they have been applied in this case, violated the
respondent’s right to due process. 	Nor have they shown that the protocols
are facially invalid such that termination is warranted in every case involving
an alien who has been returned to Mexico pursuant the protocols and later
fails to appear for his or her hearing.
Termination of the proceedings was not warranted in this case because
there was no legal basis to do so. See Matter of S-O-G- & F-D-B-, 27 I&N
Dec. at 468. As noted, the filing of the notice to appear vested the San Diego
Immigration 	Court 	with 	adjudicatory 	authority 	over 	the 	respondent’s
removal proceedings, and the DHS opposed termination and did not move to
dismiss the notice to appear pursuant to 8 C.F.R. §§ 239.2(a) and 1239.2(c)
(2019). See Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 171 (BIA 2017)
(reversing an Immigration Judge’s termination order that impinged “upon the
[DHS’s] exclusive authority to control the prosecution of [removable] aliens”
(alterations in original) (citation omitted)). Moreover, the Immigration Judge
did not permit the DHS to present evidence regarding the respondent’s
removability below, so he had no basis for concluding that the DHS had not
sustained the charges of removability.
We will therefore reinstate the respondent’s removal proceedings and
remand the record. The Immigration Judge should have granted the DHS’s
request to proceed with an in absentia hearing. 	On remand, if the DHS
establishes 	the 	respondent’s 	removability 	based 	on 	the 	facts 	and 	the
evidence, the Immigration Judge should enter an order of removal. 	Matter
of Sanchez-Herbert, 26 I&N Dec. at 45. Accordingly, the DHS’s appeal will
be 	sustained, 	the 	Immigration 	Judge’s 	decision 	will 	be 	vacated, 	the
respondent’s removal proceedings will be reinstated, and the record will be
remanded for further proceedings.
ORDER: The appeal is sustained, the Immigration Judge’s decision is
vacated, and the removal proceedings are reinstated.
FURTHER ORDER: 	The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.