Ramiro Sanchez-Herbert ("respondent") is a citizen of
Mexico. On October 16, 2007, the DHS filed a notice to appear with the
Immigration Court charging that Ramiro Sanchez-Herbert as being an alien
present in the United States without being admitted or paroled under section
212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i)
(2006).
Ramiro Sanchez-Herbert retained an immigration lawyer to assist
him with his immigration proceedings. Ramiro Sanchez-Herbert appeared for his master calendar hearing with his lawyer and conceded removability. The Immigration Judge granted Ramiro Sanchez-Herbert
a series of continuances relating to an application for adjustment status and
other issues.
The Immigration Judge scheduled Ramiro Sanchez-Herbert’s
master calendar hearing for February 3, 2011. On February 3, 2011, at the master calendar hearing Ramiro Sanchez-Herbert’s lawyer appeared by himself because Ramiro
Sanchez-Herbert left the country to Mexico. The lawyer made a motion to
terminate the proceedings, presenting evidence indicating that Ramiro Sanchez-Herbert
had voluntarily returned to Mexico. The Department of Homeland Security (DHS) moved for the Immigration Judge to
proceed with the hearing in absentia. The Immigration Judge granted Ramiro Sanchez-Herbert’s lawyer's motion to terminate the proceedings. The DHS appealed the Immigration Judge’s decision. The BIA granted the appealed.
Holding ---The Immigration Judge erred in terminating
proceedings on the grounds that she did not have jurisdiction. The respondent’s
departure from the United States after he was placed in proceedings did not
disvest the Immigration Judge of jurisdiction over the proceedings. Once a
notice to appear has been filed with the Immigration Court, jurisdiction vests.
As long as the allegations and charges
stated in the notice to appear continue to be applicable, the alien remains
subject to removal. See Matter of Brown, 18 I&N Dec. 324, 325 (BIA 1982).
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.
For assistance or information about immigration proceedings, please contact our office at (212)564-1589 to speak with an immigration attorney.
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