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520

Matter of E-R-M- & L-R-M-, Respondents

Decided June 3, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Section 235(b)(1)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.

§ 1225(b)(1)(A)(i) (2006), does not limit the prosecutorial discretion of the Department

of Homeland Security to place arriving aliens in removal proceedings under section 240

of the Act, 8 U.S.C. § 1229a (2006).

(2) The fact that an Immigration Judge has no jurisdiction over applications for

adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966,

Pub. L. No. 89-732, 80 Stat. 1161, as amended, does not negate his or her jurisdiction over

the removal proceedings of arriving Cuban aliens under section 240 of the Act. 

FOR RESPONDENT: Won Kidane, Esquire, Seattle, Washington

FOR THE DEPARTMENT OF HOMELAND SECURITY: Joy A. Merriman, Assistant

Chief Counsel

BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.

PAULEY, Board Member:

In a decision dated December 11, 2009, an Immigration Judge terminated

the removal proceedings against the respondents on jurisdictional grounds,

concluding that arriving aliens who are inadmissible must be placed

in expedited removal proceedings pursuant to section 235(b)(1)(A)(i) of the

Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(A)(i) (2006). The

Department of Homeland Security (“DHS”) has appealed from that decision,

which was also certified to us by the Immigration Judge. The DHS’s appeal

will be sustained, the proceedings will be reinstated, and the record will

be remanded to the Immigration Judge.

The DHS initiated removal proceedings under section 240 of the Act,

8 U.S.C. § 1229a (2006), by filing a Notice to Appear (Form I-862) with

the Immigration Court. The Notice to Appear alleged that the respondents,

who are natives and citizens of Cuba, applied for admission to the

United States as applicants for asylum at a land border crossing on or about

October 29, 2008. The DHS charged that the respondents are removable based
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1 The respondents are not prejudiced by their placement in section 240 removal proceedings

and, in fact, have more rights available to them in proceedings under section 240 than

in expedited removal proceedings, where aliens may only raise persecution-related relief. 

2 In Matter of R-D-, 24 I&N Dec. 221, 226 n.5 (BIA 2007), we decided not to address the

issue in the case before us today, namely, whether certain aliens subject to expedited removal

may also be placed in removal proceedings under section 240 of the Act.

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on their inadmissibility under section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C.

§ 1182(a)(7)(A)(i)(I) (2006), as aliens without valid entry documents.

Section 235(b)(1)(A)(i) of the Act, which relates to expedited removal

proceedings for arriving aliens, provides, in pertinent part, as follows:

If an immigration officer determines that an alien (other than an alien described

in subparagraph (F)) who is arriving in the United States . . . is inadmissible under

section 212(a)(6)(C) or 212(a)(7), the officer shall order the alien removed from the

United States without further hearing or review unless the alien indicates either

an intention to apply for asylum under section 208 or a fear of persecution.

The Immigration Judge found that only aliens described in section

235(b)(1)(F) of the Act are exempt from expedited removal proceedings. That

section provides that expedited removal “shall not apply to an alien who

is a native or citizen of a country in the Western Hemisphere with whose

government the United States does not have full diplomatic relations and who

arrives by aircraft at a port of entry.” The Immigration Judge determined that

the respondents, who are citizens of Cuba, did not fall into this exception

because they arrived at a land border crossing. See 8 C.F.R. § 1235.3(b)(i)

(2011). 

On appeal, the DHS argues that the Immigration Judge erred in holding that

he lacked jurisdiction over these section 240 removal proceedings. In their

brief on appeal, the respondents agree with the DHS that it had discretion

to place them in removal proceedings.1

 However, they claim that the

Immigration Judge correctly found that he lacked jurisdiction over their case

because they are prima facie eligible for adjustment of status under the Cuban

Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat.

1161, as amended (“Cuban Adjustment Act”). We will first address the DHS’s

argument that the Immigration Judge had jurisdiction to adjudicate the

respondents’ case in removal proceedings and then turn to the respondents’

argument regarding the Cuban Adjustment Act.2

The DHS argues that it is not required to process aliens described in section

235(b)(1)(A)(i) of the Act in section 235(b) expedited removal proceedings

and that it has the discretion to place these aliens directly into section 240

removal proceedings. The DHS contends that the use of the word “shall”

in section 235(b)(1)(A)(i) of the Act is properly interpreted to mean “may.”
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However, the Immigration Judge determined that the word “shall” requires that

the respondents be placed in expedited removal proceedings. We disagree.

We reach this conclusion for two reasons. First, we observe that the issue

arises in the context of a purported restraint on the DHS’s exercise of its

prosecutorial discretion. In that context, we find that Congress’ use of the term

“shall” in section 235(b)(1)(A)(i) of the Act does not carry its ordinary

meaning, namely, that an act is mandatory. It is common for the term “shall”

to mean “may” when it relates to decisions made by the Executive Branch

of the Government on whether to charge an individual and on what charge

or charges to bring. For example, in the Federal criminal code, Congress has

defined most crimes by providing that whoever engages in certain conduct

“shall” be imprisoned or otherwise punished. But this has never been

construed to require a Federal prosecutor to bring charges against every person

believed to have violated the statute, or to mandate that where, as here, when

multiple charges are possible, one or the other or all must be pursued.

To the contrary, the Supreme Court has found that the decision whether

to charge an individual with a crime is one reserved almost exclusively to the

Executive Branch. See generally United States v. Armstrong, 517 U.S. 456,

464 (1996) (observing that the Attorney General and United States Attorneys

retain broad discretion to enforce the country’s criminal laws and that they

“have this latitude because they are designated by statute as the President’s

delegates to help him discharge his constitutional responsibility to ‘take Care

that the Laws be faithfully executed’” (quoting U.S. Const. art. II, § 3));

United States v. Nixon, 418 U.S. 683, 693 (1974) (stating that the “Executive

Branch has exclusive authority and absolute discretion to decide whether

to prosecute a case”).

By way of illustration, in United States v. Batchelder, 442 U.S. 114, 118

(1979), the Court considered a case involving two statutes, 18 U.S.C.

§§ 922(h) and 1202(a), which proscribed similar conduct involving a convicted

felon’s receipt of a firearm that has been in interstate commerce, but which

carried different penalties. The Court found that the prosecutor could choose

under which statute to charge the defendant and that the applicable penalty

under each was a valid consideration. 

Like section 235(b)(1)(A)(i) of the Act, the statutes at issue in Batchelder

used the word “shall.” The Court observed that it had “long recognized that

when an act violates more than one criminal statute, the Government may

prosecute under either so long as it does not discriminate against any class

of defendants.” Id. at 123-24. The Court further observed that “[w]hether

to prosecute and what charge to file or bring before a grand jury are decisions

that generally rest in the prosecutor’s discretion.” Id. at 124; see also

United States v. Armstrong, 517 U.S. at 464 (“In the ordinary case, ‘so long

as the prosecutor has probable cause to believe that the accused committed

an offense defined by statute, the decision whether or not to prosecute, and
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3 The only area in which judicial review of a prosecutorial decision is permitted is where

an allegation is made that a charging decision was based on constitutionally prohibited

reasons, such as race or religion. See United States v. Batchelder, 442 U.S. at 125

(“Selectivity in the enforcement of criminal laws is, of course, subject to constitutional

constraints.”); see also id. at 125 n.9 (“The Equal Protection Clause prohibits selective

enforcement ‘based upon an unjustifiable standard such as race, religion, or other arbitrary

classification.’” (quoting Olyer v. Boles, 368 U.S. 448, 456 (1962))). 

4 Under section 235(a)(1) of the Act, arriving aliens are “deemed” to be applicants for

admission.

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what charge to file or bring before a grand jury, generally rests entirely

in his discretion.’” (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364

(1978))); United States v. Aguilar, 515 U.S. 593, 616 (1995) (Scalia, J.,

concurring in part and dissenting in part) (observing that it is “not unusual for

a particular act to violate more than one criminal statute, and in such situations

the Government may proceed under any statute that applies”) (citations

omitted).3

Applying the above general principles, we find no reason to suppose that

the broad discretion given to the Executive Branch regarding charging

decisions in the criminal context does not also apply to charging decisions

by the Executive Branch, that is, the DHS, in the immigration context.

Second, we find that the statutory scheme itself supports our reading that

the DHS has discretion to put aliens in section 240 removal proceedings even

though they may also be subject to expedited removal under section

235(b)(1)(A)(i) of the Act. Section 235(b)(2)(A) of the Act provides that

“in the case of an alien who is an applicant for admission, if the examining

immigration officer determines that an alien seeking admission is not clearly

and beyond a doubt entitled to be admitted, the alien shall be detained for

a proceeding under section 240.”4

 Thus, aliens who are in the broad category

of applicants for admission, which includes, inter alia, any alien present in the

United States who has not been admitted, are entitled to section 240 removal

proceedings. See section 235(a)(1) of the Act. 

However, section 235(b)(2)(B) of the Act, titled “Exception,” states that

section 235(b)(2)(A) “shall not apply” to crewmen, stowaways, or aliens

“to whom paragraph (1) applies,” namely, arriving aliens, such as the

respondents in this case. We read this exception in section 235(b)(2)(B)

as meaning that these three classes of aliens, including those subject

to expedited removal under section 235(b)(1)(A)(i), are not entitled

to a section 240 proceeding, not that these classes of aliens may not be placed

in such proceedings. This reading is confirmed by the fact that section

235(a)(2) prohibits stowaways, but not the other two classes of aliens excepted

under section 235(a)(2)(B), from being placed in section 240 proceedings. See

section 235(a)(2) of the Act (“In no case may a stowaway be considered
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5 Matter of Kanagasundram, 22 I&N Dec. 963 (BIA 1999), is not to the contrary. In that

case, we found that an alien who sought admission under the Visa Waiver Pilot Program

could not be placed in expedited removal proceedings and, pursuant to the regulations, must

be issued a Notice of Referral to Immigration Judge (Form I-863). In so holding, we relied

on 8 C.F.R. § 217.4 (1999), which explicitly states that an alien who presents himself

as an applicant for admission under section 217 of the Act “must” be issued a Form I-863

for proceedings to adjudicate asylum applications. Matter of Kanagasundram, 22 I&N Dec.

at 965. No comparable regulation exists in the case of aliens described in section

235(b)(1)(A).

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an applicant for admission or eligible for a hearing under section 240.”). The

lack of a similar bar for the other two categories of aliens listed in the

exception to section 235(b)(2)(A), including aliens like the respondents who

are subject to section 235(b)(1)(A)(i) of the Act, supports our interpretation

that these two categories of aliens may nevertheless be placed in section 240

proceedings at the election of the DHS. 

Accordingly, based on the prosecutorial discretion given to the DHS and

the above-cited provisions in the Act, we find that it was permissible for the

DHS to file a Notice to Appear commencing section 240 removal proceedings

against the respondents and that the Immigration Judge has jurisdiction over

them.5

We now turn to the respondents’ argument that the Immigration Judge has

no jurisdiction over their case because they are prima facie eligible for

adjustment under the Cuban Adjustment Act. In Matter of Martinez-Montalvo,

24 I&N Dec. 778 (BIA 2009), we held that Immigration Judges lack

jurisdiction under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2008)

to adjudicate an application filed by an arriving alien seeking adjustment

of status under the Cuban Adjustment Act, with the limited exception

of an alien who has been placed in removal proceedings after returning to the

United States pursuant to a grant of advance parole to pursue a previously filed

application. This narrow exception does not apply to the respondents’ case.

Although we agree with the respondents that the Immigration Judge has

no jurisdiction over applications for adjustment of status under the Cuban

Adjustment Act, the lack of jurisdiction over this potential avenue of relief

does not negate his jurisdiction over their removal proceedings under section

240 of the Act. 

Based on the foregoing, we will sustain the DHS’s appeal and vacate the

Immigration Judge’s ruling that he lacked jurisdiction over the respondents’

case. Accordingly, section 240 removal proceedings will be reinstated and the

Immigration Judge will determine whether the respondents are removable

as charged and, if they are removable, give them an opportunity to pursue any

other relief from removal for which they may be eligible. We recognize that

the Immigration Judge has no jurisdiction over applications for adjustment
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525

of status under the Cuban Adjustment Act. The respondents may therefore

elect to file such applications with the United States Citizenship and

Immigration Services. 

ORDER: The appeal of Department of Homeland Security is sustained,

the decision of the Immigration Judge is vacated, and the removal proceedings

against the respondents 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.