Departing the United States During Deportation Proceedings

The Board of Immigration Appeals recently issued a new decision finding that, where a person who is in deportation proceedings leaves the United States before the conclusion of the proceeding, the Immigration Court still has the authority to order the person deported, and all of the consequences of a deportation order still apply.

In the case, Matter of Sanchez-Herbert, 26 I. and N. Dec. 43 (BIA 2012), the Respondent was charged with being present in the United States without being admitted or paroled.  The Respondent appeared before the Court, and had an immigration attorney.  However, while his case was still pending, the Respondent departed the United States and returned to Mexico.

The Respondent’s attorney made a motion to terminate the Immigration Court proceeding, arguing that the Immigration Judge no longer had jurisdiction (authority) over the Respondent because he was no longer in the United States.  The Department of Homeland Security argued that the Immigration Judge did have jurisdiction over the Respondent, and that the Immigration Judge should order the Respondent removed in absentia (without him being present).

The Immigration Judge agreed with the Respondent’s attorney, and terminated the proceeding.  The Department of Homeland Security appealed the decision of the Immigration Judge to the Board of Immigration Appeals.

The Board of Immigration Appeals found that a person “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.”  The Board reasoned that, if a proceeding were terminated simply because the Respondent had departed the United States, this would allow persons in deportation proceedings to determine the outcome of their proceeding on their own by simply leaving the United States before the Immigration Judge made a decision – thereby avoiding the consequences of an order of removal, which include inadmissibility to the United States after having been removed and being ineligible for certain forms of relief from deportation for a period of ten years.

The Board of Immigration Appeals sustained the Department of Homeland Security’s appeal, and reinstated the removal proceedings.

If you or your loved one is facing deportation, and are scheduled to appear before an Immigration Judge, call our office today for a consultation. We will provide you with a complete assessment of your matter and determine the best strategies for your case.