Cite as 23 I&N Dec. 882 (BIA 2006) Interim Decision #3526 

In re Fabricio ALCANTARA-PEREZ, Respondent 

File A74 105 213 - San Diego 

Decided February 23, 2006 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

(1) When the Board of Immigration Appeals has remanded the record for completion of 

background and security checks and new information that may affect the alien’s eligibility 

for relief is revealed, the Immigration Judge has discretion to determine whether to 

conduct an additional hearing to consider the new evidence before entering an order 

granting or denying relief. 

(2) When a proceeding is remanded for background and security checks, but no new 

information is presented as a result of those checks, the Immigration Judge should enter 

an order granting relief. 

FOR RESPONDENT: K. Kerry Yianilos, Esquire, San Diego, California 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jonathan Grant, Assistant 

Chief Counsel 

BEFORE: Board Panel: OSUNA, Acting Vice Chairman. COLE and FILPPU, Board 

Members. 

OSUNA, Acting Vice Chairman: 

This case was last before us on April 13, 2005, when we dismissed an 

appeal by the Department of Homeland Security (“DHS”) from a decision of 

an Immigration Judge dated December 1, 2003, finding that the respondent 

established eligibility for adjustment of status. We remanded the record for 

the appropriate background and security checks and for the entry of an order 

by the Immigration Judge. 

On remand, the background checks revealed that during the pendency of the 

appeal, the respondent had been convicted of a domestic violence crime 

against his wife, who was the petitioner of an immediate relative visa petition 

filed on his behalf, and that an active order of protection restraining him from 

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having any contact with his wife was in effect. Presented with this new 

evidence, the Immigration Judge certified the case to us for guidance on how 

to proceed.1

 The record will be remanded to the Immigration Judge. 

I. RELEVANT LAW 

Effective April 1, 2005, interim rules were issued requiring background and 

security investigations when the granting of any form of immigration relief in 

immigration proceedings would permit the alien to reside in the United States. 

Background and Security Investigations in Proceedings Before Immigration 

Judges and the Board of Immigration Appeals, 70 Fed. Reg. 4743, 4753 

(Jan. 31, 2005) (to be codified at 8 C.F.R. §§ 1003.47(a), (b)). Accordingly, 

if the appropriate background checks have not been conducted in a case 

pending before the Board, we are not “able to issue a final decision granting 

any application for relief that is subject to the provisions of § 1003.47, 

because the record is not yet complete.” 70 Fed. Reg. at 4748 (Supplementary 

Information); see also id. at 4752-53 (to be codified at 8 C.F.R. 

§ 1003.1(d)(6)). 

When background checks are required, 8 C.F.R. § 1003.1(d)(6)(ii) provides 

that the Board will determine the best means to facilitate the final disposition 

of the case, either by issuing an order remanding the case with instructions to 

allow the DHS to complete the appropriate background and security checks, 

or by providing notice to both parties that the case is being placed on hold 

until the checks have been completed and the results have been reported to the 

Board. For cases that were pending at the Board before the regulation took 

effect on April 1, 2005, the regulations contemplate that after consideration 

of the issues on appeal, the Board will remand to the Immigration Judge those 

cases in which the alien is found eligible for relief from removal, with 

instructions to allow the DHS to complete the background checks and report 

the results to the Immigration Judge. 70 Fed. Reg. at 4748 (Supplementary 

Information). 

According to 8 C.F.R. § 1003.47(h), in any case remanded by the Board 

pursuant to 8 C.F.R. § 1003.1(d)(6), the Immigration Judge is required to 

consider the results of the background checks. The regulation further 

provides that “[i]f new information is presented, the immigration judge may 

hold a further hearing if necessary to consider any legal or factual issues, 

including issues relating to credibility, if relevant” and “shall then enter an 

order granting or denying the immigration relief sought.” 8 C.F.R. 

§ 1003.47(h). After the Immigration Judge enters an order granting or 

To consider questions of administrative importance involving procedures to be followed 

under the new background check regulations, we will consider this matter by certification 

pursuant to 8 C.F.R. § 1003.1(c) (2005). 

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Cite as 23 I&N Dec. 882 (BIA 2006) Interim Decision #3526 

denying relief based on the new evidence, the parties have the right to appeal 

the decision for the Board’s review. See 70 Fed. Reg. at 4748 (Supplementary 

Information). 

II. ANALYSIS 

In the instant case, our April 13, 2005, order was not a final decision 

because the appropriate background checks had not been conducted. 8 C.F.R. 

§ 1003.1(d)(6). On remand, the background checks revealed new information 

indicating that the respondent had been convicted of another domestic 

violence offense against his wife and that there was an outstanding protective 

order restraining the respondent from contacting her. This information is 

relevant to the respondent’s eligibility for adjustment of status under section 

245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000), and, 

in particular, the exercise of discretion, because the respondent’s wife was the 

petitioner of his immediate relative visa petition and the reason why he is 

eligible to adjust his status. 

Our April 13, 2005, decision affirming the Immigration Judge’s grant of 

adjustment of status in this case was based on the record as it existed at that 

time. However, in cases where background checks identify new information 

relevant to the proceedings, the interim regulations require the Immigration 

Judge to consider this additional evidence and then issue a decision granting 

or denying relief. 8 C.F.R. § 1003.47(h). Therefore, because the background 

checks in this case revealed new information relevant to the original grant of 

relief to the respondent, the Immigration Judge is now permitted to examine 

the case in a different light. 

There is no set formula by which an Immigration Judge should proceed on 

remand if the background checks reveal new pertinent information. When the 

background checks identify such information on remand, however, an 

additional hearing will often be necessary before the Immigration Judge enters 

a new decision. We leave the determination whether to conduct an additional 

hearing to the discretion of the Immigration Judge but note that any arguments 

and objections of the parties in this regard should be considered. 

Because the interim regulations are recently promulgated, we also take this 

opportunity to offer guidance as to how Immigration Judges should proceed 

when the background checks do not reveal additional relevant information on 

remand. See Matter of S-H-, 23 I&N Dec. 462 (BIA 2002) (giving guidance 

regarding our authority to review findings of fact after new regulations 

became effective). 

We do not view the interim regulations as providing an opportunity for the 

parties to relitigate issues that were previously considered and decided. Our 

decision to remand a case for the completion of background checks is made 

only when we have reviewed the record and the appellate arguments and we 

have determined that the respondent is eligible for the relief requested and 

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merits such relief as a matter of discretion. In such instances, we would issue 

an order granting relief, but for the background check requirements. 

Therefore, when a proceeding is remanded for background checks, but no new 

information is presented as a result of those checks, the interim regulations 

contemplate that the Immigration Judge will enter an order granting relief.2 

That order then becomes the final administrative order in the case. 

III. CONCLUSION 

In the present case, the background checks revealed new information that 

must be considered in determining whether the respondent is eligible for 

adjustment of status and whether he merits such relief as a matter of 

discretion. Accordingly, we will remand the record to the Immigration Judge 

for further proceedings to consider the new evidence revealed during the 

background checks, and for the entry of a new order. 

ORDER: The record is remanded to the Immigration Judge for further 

proceedings consistent with the foregoing opinion. 

2

 We note that 8 C.F.R. § 1003.47(i) requires that a decision granting relief must include 

advice to the respondent to contact the DHS for the preparation of documents evidencing 

such relief. 

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