The Board of Immigration Appeals (BIA) – the administrative tribunal that considers challenges to immigration court decisions – issued an opinion last month in Matter of Tepec-Garcia, holding that an immigration judge didn’t err in terminating removal proceedings without prejudice when neither the alien (termed a “respondent”) nor the government appeared. How insane were Biden-era immigration policies? Well, imagine they held removal proceedings and nobody came.
The Way Things Used to Be
The government is represented in removal proceedings under section 240 of the Immigration and Nationality Act (INA) by ICE attorneys, and technically the regulations give the agency the option not to send counsel, except in specified instances.
That said, prior to the Biden administration there were few scenarios where a government lawyer didn’t appear in immigration court, and I should know: when one of my colleagues forgot he was supposed to be in court in April 1995, the judge’s clerk called me and I had to pull myself away from lunch to argue a case I’d never prepped.
The result was the BIA’s 1996 opinion in Matter of S-P-, and the less said about it the better.
The Mayorkas and Doyle Memos
That all changed under the Biden administration, particularly once then-DHS Secretary Alejandro Mayorkas issued a September 2021 memo captioned “Guidelines for the Enforcement of Civil Immigration Law” (the “Mayorkas Memo”).
In it, Mayorkas claimed he was attempting to preserve limited ICE resources by “prioritizing” certain classes of aliens for “enforcement action”, i.e., investigating, apprehending, detaining, prosecuting, and deporting removable “non-citizens”.
The Mayorkas Memo wasted the very resources it purported to preserve, however, by requiring ICE officers and attorneys to consider irrelevant “mitigating factors” before taking any enforcement action, and to constantly reassess them thereafter.
In April 2022, Kerry Doyle, then ICE’s principal legal advisor (“PLA”, the agency’s general counsel), issued her own directive, “Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion” (the “Doyle Memo”).
That 17-page guidance implemented the Mayorkas Memo and applied its priorities and restrictions on ICE attorneys in immigration court.
Among other things, the Doyle Memo made clear that ICE attorneys in immigration court were expected “to use their professional judgment to do justice in each case, whether the decision relates to: filing an NTA [“Notice to Appear”, the charging documents in removal proceedings]; moving to dismiss, administratively close, or continue proceedings; stipulating to issues, relief, or bond; or pursuing an appeal”.
Those ICE lawyers are there to represent you, the American taxpayer in immigration court, but read that statement again and ask yourself whether you were getting your money’s worth.
In any event, saliently, section III of the Doyle Memo, “Assigning Attorneys”, states, in pertinent part:
Whether to assign an attorney to represent DHS in a particular case is a matter of prosecutorial discretion because applicable regulations do not require DHS to assign counsel to every removal proceeding. As such, in an effort to prioritize limited resources, except where required by regulation and in accordance with this guidance, Chief Counsel may waive DHS's appearance in the following categories of non-detained hearings: (1) master calendar hearings; (2) in absentia hearings where evidence of removability has been submitted to the court or removability has been previously established; and (3) individual calendar hearings on a case-by-case basis. [Emphasis added.]
Matter of Tepec-Garcia
Neither DOJ nor ICE has ever disclosed how many Biden-era removal proceedings went forward without an ICE lawyer in attendance, but anecdotally many did, including in the matter of Sarahi Tepec-Garcia, an alien charged under section 212(a)(6)(A) of the INA with being present in the United States without being admitted or paroled.
On April 3, 2024, the immigration judge called that case, and not only didn’t an ICE lawyer appear, Tepec-Garcia didn’t, either. What’s worse, ICE didn’t prefile any evidence establishing that Tepec-Garcia was removable, or even that she was an alien.
Again, I always showed up in court and always came prepared with the necessary documents to establish my case on the off chance the respondent denied the allegations. But then I never worked for PLA Doyle, either.
Under section 240(b)(5)(A) of the INA, an immigration judge must order a respondent who fails to appear removed in absentia, but only if ICE “establishes by clear, unequivocal, and convincing evidence that” written notice of the removal hearing was provided to the respondent “and that the alien is removable”.
And while section 240(c)(2)(A) of the INA puts the burden on the respondent to prove that she “is clearly and beyond doubt entitled to be admitted and is not inadmissible under” section 212 of the INA, the government must first establish that the respondent is an “alien”, not a U.S. citizen or national.
Notice wasn’t at issue, but again the government hadn’t pre-filed any evidence and no ICE attorney was in court to establish Tepec-Garcia’s alienage.
Consequently, the immigration judge terminated the removal proceedings “without prejudice”, that is without dispositively finding that the respondent wasn’t removable. I am not sure that I would have extended the agency such grace.
On appeal, ICE argued that the immigration judge “erred in terminating proceedings and was required by regulation to set the matter to a future hearing to allow” the agency “a second opportunity to appear and provide evidence of alienage”.
The regulation in question, 8 C.F.R. § 1240.10(d), does require the immigration court to request the assignment of an ICE lawyer “when removability is not determined under the provisions of” 8 C.F.R. § 1240.10(c).
Paragraph (c) of the regulation only applies, though, when the respondent shows up and denies removability, and as the BIA explained:
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. [Emphasis in original.]
A Waste of Resources
Expect DHS to refile the NTA in this case and for the entire process to begin anew with an ICE attorney in court and ready to go.
Again, the Biden administration contended the policies in the Mayorkas and Doyle Memos were meant to preserve scarce resources, but that was always a canard. “The less immigration enforcement, the better” was the seeming mantra of the last administration with respect to all but the most dangerous of aliens.
Many Biden immigration policies were seemingly framed to waste DHS’s limited resources, but in this instance, they answered a question no one was asking: What if they held removal proceedings and nobody came? The answer is a do-over, but only if ICE lucks out and has an immigration judge gracious enough to allow a reset.