Relief Application Waived if Not Filed by IJ’s Deadline, BIA Rules

Matter of R-C-R-, 28 I&N Dec. 74 (BIA 2020) (pdf)

(1) After an Immigration Judge has set a firm deadline for filing an application for relief, the respondent’s opportunity to file the application may be deemed waived, prior to a scheduled hearing, if the deadline passes without submission of the application and no good cause for noncompliance has been shown.

(2) The respondent failed to meet his burden of establishing that he was deprived of a full and fair hearing where he has not shown that conducting the hearing by video conference interfered with his communication with the Immigration Judge or otherwise prejudiced him as a result of technical problems with the video equipment.

An application for relief from removal may be deemed waived if the applicant fails to file by an immigration judge’s (IJ’s) firm deadline, even if the applicant also has a subsequent hearing scheduled, the Board of Immigration Appeals (BIA or Board) ruled in Matter of R-C-R-, 28 I. & N. Dec. 74 (B.I.A. 2020). The Board also found that the respondent was not deprived of a full and fair hearing by technical problems in conducting his hearing by interactive video.

Respondent R-C-R-, a citizen of Guatemala, entered the U.S. in March 2019 and was charged with removability as an alien present without admission or parole and for lacking valid entry documents. In November 2019, R-C-R- appeared at a hearing without counsel, conceded removability, and expressed a desire to apply for asylum, withholding of removal, and protection under the Convention Against Torture.1 The BIA deemed the hearing held, for jurisdictional purposes, in Richwood, Louisiana, where the respondent was in detention. The IJ communicated through video conference from the Batavia Immigration Court in New York.

R-C-R- was given a Form I-589 relief application. Although the respondent’s next hearing was scheduled for January 14, 2020, the IJ instructed him to submit his relief application no later than December 6, 2019, or it would be deemed waived.
A week past the deadline, after receiving no application from the respondent, the IJ found that R-C-R- had waived his opportunity to apply and ordered him removed.
The respondent argued to the BIA that the IJ violated his due process rights both by setting an application deadline in advance of his next hearing and by not allowing him to explain why he missed the deadline. R-C-R- also argued that he was denied a full and fair hearing because he was unrepresented, detained, and forced to communicate through a Spanish interpreter after saying he understood “more Spanish than Mam”

The BIA held, first, that the IJ did not abuse her discretion in ordering R-C-R- to file his relief application before his next hearing date. The Board noted that 8 CFR § 1003.31(c) provides:

The Immigration Judge may set and extend time limits for the filing of applications and related documents and responses thereto, if any. If an application or document is not filed within the time set by the Immigration Judge, the opportunity to file that application or document shall be deemed waived.

The BIA found the waiver authority upheld by its own precedents and an unpublished decision of the circuit within which the hearing was held.2 R-C-R- had not moved to extend the deadline and obtain more time to complete his application, the Board further noted, nor did he use a motion to reconsider or reopen as an opportunity to explain his failure to file on time. “Had the respondent filed either type of motion and provided good cause for missing the deadline, reconsideration or reopening by the Immigration Judge would likely have been appropriate,” the BIA said.

Even on appeal, appearing with counsel, R-C-R- still offered no explanation and did not submit a completed relief application as part of a motion to remand, the Board added. He also did not allege facts that would show a prima facie case of eligibility for any form of relief from removal.

The BIA next found that the respondent had not explained why his case was prejudiced by the conditions of his hearing. The hearing was conducted in Spanish because the respondent stated that it was the language he understood best, the BIA noted. He did not object during the hearing that he could not understand his interpreter, and the BIA found no signs of confusion in the hearing transcript.

The use of interactive video for hearings is authorized by the INA and regulations, as several courts of appeals have recognized, and thus is not a per se due process violation, the BIA said, noting that these authorities include two unpublished Fifth Circuit decisions.3 In this case, the BIA found that R-C-R- failed to explain how his hearing was deficient, given that he was advised of his procedural rights and right to be represented, declined the IJ’s offer to ask questions, and indicated that he understood the charges and could hear the IJ’s questions. The respondent also did not allege any dropout of the audio or video or any other technical problems.
The BIA dismissed the respondent’s appeal.

David J. Rozas, Baton Rouge, Louisiana, appeared for the respondent. Dawn M. Carter appeared for the Department of Homeland Security.

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