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Matter of Jonathan Said HERRERA-VASQUEZ, Respondent 

Decided May 8, 2020

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The absence of a checked alien classification box on a Notice to Appear (Form I-862) 

does not, by itself, render the notice to appear fatally deficient or otherwise preclude an 

Immigration Judge from exercising jurisdiction over removal proceedings, and it is 

therefore not a basis to terminate the proceedings of an alien who has been returned to 

Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez, 27 I&N Dec. 

762 (BIA 2020), followed.

FOR RESPONDENT: Pro se

FOR THE DEPARTMENT OF HOMELAND SECURITY: Meggan G. Johnson, 

Associate Legal Advisor 

BEFORE: Board Panel: MANN, Board Member; MORRIS, Temporary Board Member; 

Concurring Opinion: KELLY, Board Member. 

MANN, Board Member: 

In a decision dated May 30, 2019, an Immigration Judge terminated these 

removal proceedings on the basis that the Notice to Appear (Form I-862) 

served on the respondent was defective. The Department of Homeland 

Security (“DHS”) has appealed from that decision. We requested and 

received supplemental briefs from the DHS and amici curiae.1

 There has 

been no response to our request or the DHS’s appeal from the respondent. 

The appeal will be sustained, the proceedings will be reinstated, and the 

record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

According to the respondent’s Record of Deportable/Inadmissible Alien 

(Form I-213), a United States Border Patrol agent encountered and arrested 

him at 2:40 a.m. on April 1, 2019, in San Ysidro, California, at a location 

approximately a quarter mile north of the United States border with Mexico. 

The respondent was transported to the Imperial Beach Border Patrol Station 

where he “admitted to be a citizen and national of Honduras without the 

 1 We acknowledge with appreciation the briefs submitted by the DHS and amici.
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necessary legal documents to enter, pass through, or remain in the United 

States.” He “also admitted to illegally crossing the United States/Mexico 

international boundary on or about April 1, 2019, without being inspected 

by an Immigration Officer at a designated Port of Entry.” The respondent 

conceded that he was a member of a migrant “caravan.”

On April 3, 2019, the DHS personally served the respondent with a notice 

to appear that bears the heading, “In removal proceedings under section 240 

of the Immigration and Nationality Act.” On the first page of the notice to 

appear, the DHS alleges that the respondent is not a citizen or national of the 

United States; that he is a native and citizen of Honduras; that he arrived in 

the United States at or near San Ysidro, California, on or about April 1, 2019; 

that he was not then admitted or paroled after inspection by an immigration 

officer; and that he is an immigrant not in possession of a valid unexpired 

visa, reentry permit, border crossing card, or other valid entry document 

required by the Immigration and Nationality Act.

The next section of the notice to appear states, “On the basis of the 

foregoing, it is charged that you are subject to removal from the United 

States” under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality 

Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2018), as an alien who, at the time of 

application for admission, did not possess a valid entry document. The notice 

to appear contains the respondent’s signature, acknowledging that the DHS 

personally served it on him. It informed him that his removal hearing would 

be held on May 30, 2019, at 12:30 p.m. in the San Diego Immigration Court 

and listed his address as a “Domicilio Conocido” (“Known Domicile”) in 

Tijuana, Baja California, Mexico. However, the DHS did not check any of 

the three alien classification boxes on the notice to appear to indicate whether 

he was alleged to be (1) an arriving alien, (2) an alien present in the United 

States who has not been admitted or paroled, or (3) an alien who has been 

admitted to the United States but is removable for reasons stated elsewhere 

on the notice to appear.

The DHS also provided the respondent with a document entitled “Migrant 

Protection Protocols Initial Processing Information” (“MPP Sheet”). The 

MPP Sheet, which is written in the English language and translated into 

Spanish, instructed him to arrive at a specific location at the San Ysidro port 

of entry at 9:00 a.m. on May 30, 2019, so that he could be transported to the 

San Diego Immigration Court for his hearing. Following the service of the 

notice to appear and MPP Sheet, the respondent was returned to Mexico to 

await removal proceedings pursuant to section 235(b)(2)(C) of the Act, 

8 U.S.C. § 1225(b)(2)(C) (2018).

The respondent did not appear at the Immigration Court on May 30, 2019. 

During the hearing, the DHS requested that the Immigration Judge order the 

respondent removed from the United States in absentia pursuant to section 
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240(b)(5)(A) of the Act, 8 U.S.C. § 1229a(b)(5)(A) (2018). Instead, the 

Immigration Judge terminated the proceedings. 

II. ANALYSIS

A. Notice of the Hearing

In his decision, the Immigration Judge expressed a concern that the 

respondent was not given proper notice of how to attend his hearing. 

Subsequently, we issued Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 

2020), holding that where, as here, the DHS returns an alien to Mexico to 

await a removal hearing pursuant to the Migrant Protection Protocols and 

provides the alien with sufficient notice of that hearing, an Immigration 

Judge should enter an in absentia order of removal if the respondent fails to 

appear and is removable. The record indicates that the respondent received 

sufficient notice of the hearing pursuant to Matter of J.J. Rodriguez. There 

is no indication in the record that he did not understand the instructions for

appearing at the hearing or that he made any attempt to appear. 

Moreover, according to the Form I-213, the respondent understood that 

he would be returned to Mexico and should not attempt to enter the United 

States “until he returns to the appropriate port of entry on the date of his 

hearing before an immigration judge.” See Matter of Gomez-Gomez, 23 I&N 

Dec. 522, 524 (BIA 2002) (stating that a Form I-213 is presumptively 

trustworthy). The Immigration Judge also acknowledged that many other 

aliens who were returned to Mexico under the Migrant Protection Protocols 

attended their hearings that day. We conclude that termination of the

respondent’s removal proceedings on the basis that he did not receive 

adequate notice of his removal hearing is foreclosed by our decision in 

Matter of J.J. Rodriguez.

B. Sufficiency of the Notice To Appear

However, this case differs from Matter of J.J. Rodriguez in several 

respects. First, unlike the respondent, who was alleged to have arrived in the 

United States without presenting himself at a port of entry, the alien in that 

case applied for admission at a designated port of arrival. Matter of J.J. 

Rodriguez, 27 I&N Dec. at 762. Second, the respondent’s notice to appear

did not indicate, by a checked alien classification box, whether he was 

alleged to be an arriving alien, an alien present in the United States but not 

admitted or paroled, or one who has been admitted but is removable. Third, 

in Matter of J.J. Rodriguez, we did not address whether the notice to appear

provided sufficient information to establish notice of the type of proceedings 
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being initiated and the proper grounds for removability. In light of these 

distinctions, we requested and received supplemental briefing from the DHS 

and amici curiae regarding (1) whether, under the Migrant Protection 

Protocols program, the DHS may return an alien to a contiguous territory 

pending removal proceedings if the notice to appear does not allege that the 

person is an arriving alien or entered the United States via a port of entry or 

by interdiction and (2) whether the DHS has statutory authority to apply the 

Migrant Protection Protocols program to aliens who did not present 

themselves for inspection at a port of entry.

The notice to appear is the charging document that commences removal 

proceedings under section 240 of the Act. See Inspection and Expedited 

Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal 

Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 449 (Jan. 3, 1997)

(Supplementary Information). Historically, the DHS has used a version of 

the notice to appear that contains three possible allegations referring to the 

circumstances of an alien’s arrival or presence in the United States.2

The statute and the regulations set forth the requirements for a notice to 

appear, which include:

(A) The nature of the proceedings against the alien.

(B) The legal authority under which the proceedings are conducted.

(C) The acts or conduct alleged to be in violation of law.

(D) The charges against the alien and the statutory provisions alleged to have been 

violated.

Section 239(a)(1)(A)–(D) of the Act, 8 U.S.C. § 1229(a)(1)(A)–(D) (2018); 

see also 8 C.F.R. § 1003.15(b)(1)–(4) (2020). 

Amici argue that absent a checked box designation, a notice to appear

fails to meet the statutory and regulatory requirement to advise the 

respondent of the nature of the proceedings. However, neither section 

239(a)(1)(A) of the Act nor the regulation at 8 C.F.R. § 1003.15(b)(1) 

explicitly requires that the DHS check one of the three alien classification 

boxes on the notice to appear, so long as the required information is provided. 

Had Congress wanted the DHS to place an alien on notice of the applicable 

designation, it could have included such a requirement in section 239(a)(1) 

 2 The version of the notice to appear in this case, which was revised on August 1, 2007, 

includes the following alien classification checkboxes:

◻ 1. You are an arriving alien. 

◻ 2. You are an alien present in the United States who has not been admitted or 

paroled.

◻ 3. You have been admitted to the United States, but are removable for the reasons 

stated below.
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of the Act. Cf. Kucana v. Holder, 558 U.S. 233, 248 (2010) (stating that if 

Congress wanted to preclude judicial review over decisions not specified as 

discretionary by statute, it could have done so). 

In this regard, we have previously held that an Order to Show Cause 

(Form I-221) issued pursuant to the former regulations at 8 C.F.R. § 242.1 

(1975) provided adequate information because it was “sufficiently explicit to 

inform the alien . . . what actions were in violation of the law, and what law 

he violated, so as to enable him to mount a defense.” Matter of Chery and 

Hasan, 15 I&N Dec. 380, 381 (BIA 1975);3 see also Matter of Raqueno, 

17 I&N Dec. 10, 12–13 (BIA 1979) (“An Order to Show Cause is designed 

to inform an alien of the charges against [him] with sufficient precision to 

allow [him] to properly defend [himself].” (citing Matter of Chery and 

Hasan, 15 I&N Dec. 380)); Matter of Ho, 12 I&N Dec. 516, 517–18 (BIA 

1967), aff’d sub nom., Ho Yeh Sze v. INS, 389 F.2d 978, 981 (2d Cir. 1968). 

This standard is instructive in interpreting our current regulations at 8 C.F.R. 

§ 1003.15(b)(1)–(4), whose provisions are substantively similar to the former 

regulations. 

Overall, our review of the respondent’s notice to appear satisfies us that 

it sufficiently enabled him to mount a defense to the inadmissibility charge 

against him. The notice to appear placed the respondent on notice of the 

nature of the proceedings, advising him that he was being placed “[i]n 

removal proceedings under section 240 of the Immigration and Nationality 

Act,” as opposed to some other immigration proceeding, such as expedited 

removal, or any other form of criminal, civil, or administrative proceedings. 

See Nature, Black’s Law Dictionary (11th ed. 2019) (defining “nature” as 

“[a] fundamental quality that distinguishes one thing from another; the 

essence of something”).

Among other things, the respondent’s notice to appear described his right 

to be represented, the conduct of the hearing, and the consequences of failing 

to appear.

4

 Specifically, the notice to appear directed the respondent, “[Y]ou 

 3 At the time of our decision in Matter of Chery and Hasan, 15 I&N Dec. at 380–81, the 

regulations at 8 C.F.R. § 242.1(b) required a statement of the nature of the proceedings, the 

legal authority under which they were conducted, the factual allegations, the charges 

against the alien, and the statutory provisions alleged to have been violated. See 

Immigration and Naturalization Service, Department of Justice, 22 Fed. Reg. 9765, 9796 

(Dec. 6, 1957).

4 The notice to appear placed the respondent on notice that he could be represented at the 

hearing, and he was given a current list of attorneys and organizations that provide free 

legal services and allowed a period of time to secure counsel. See section 239(a)(1)(E) of 

the Act; 8 C.F.R. § 1003.15(b)(5). It also warned the respondent of the requirements that 

he must “immediately provide (or have provided)” the DHS and the Immigration Court 

“with a written record of an address and telephone number (if any) at which [he] may be 
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are ordered to appear before an immigration judge . . . to show why you 

should not be removed from the United States.” It set forth the factual 

allegations against him, namely, that he recently arrived in the United 

States, was not inspected or admitted by an immigration officer, and 

lacked valid documentation to enter the country. It also stated the charge 

against the respondent, specifying that he was inadmissible under section 

212(a)(7)(A)(i)(I) of the Act because he did not possess valid entry 

documents. We conclude that this notice to appear placed the respondent on 

notice of all the information required by sections 239(a)(1)(A)–(D) of the 

Act and 8 C.F.R. § 1003.15(b)(1)–(4).

We have also considered amici’s concerns regarding the potential 

consequences of a notice to appear that has no checked box. For example, 

amici suggest that if no box is checked, an Immigration Judge may not have

jurisdiction to adjudicate a potential application for adjustment of status, 

because 8 C.F.R. § 1245.2(a)(1)(ii) (2020) generally divests Immigration 

Judges from considering such an application filed by an arriving alien. 

However, such a concern is speculative at this point. There is no indication 

that the respondent is the beneficiary of an approved (or even pending) 

immigrant visa petition. 

Moreover, in requiring that a notice to appear advise the respondent of 

the “nature of the proceedings against” him, neither section 239(a)(1)(A) of 

the Act nor 8 C.F.R. § 1003.15(b)(1) mandates that a notice to appear set 

forth an alien’s eligibility for every form of relief from removal for which he 

might be eligible. See Matter of Raqueno, 17 I&N Dec. at 13 (“There is no 

need, under the law or the regulations, for allegations in an Order to 

Show Cause of elements [that are] unnecessary to the charge as that charge 

is defined in the statute.”). Once an alien appears, it is the duty of the

Immigration Judge, not the DHS, to advise the alien of any apparent 

eligibility to apply for relief from removal. 8 C.F.R. § 1240.11(a)(2) (2020).

For the reasons stated above, we conclude that the respondent’s notice to 

appear was proper and met the requirements of section 239(a)(1) of the Act 

and 8 C.F.R. § 1003.15(b). It contained the nature of the proceedings against 

the respondent, the legal authority under which the proceedings would be 

conducted, his acts or conduct alleged to be in violation of law, and the 

statutory provisions that he is charged with violating. Moreover, it advised 

him that he may be represented by counsel and warned him that he was

 

contacted” and “with a written record of any change of [his] address or telephone number,” 

as well as the consequences under section 240(b)(5) of the Act of “failure to provide 

address and telephone information.” Sections 239(a)(1)(F)(i)–(iii) of the Act. Finally, the 

notice to appear contained the time and place at which the removal hearing would be held 

and the consequences under section 240(b)(5) of “the failure, except under exceptional 

circumstances, to appear.” Sections 239(a)(1)(G)(i)–(ii) of the Act. 
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required to provide the DHS and the Immigration Court of his address. 

The notice to appear contained the time and place at which the removal 

hearing would be held and the consequences of his failure to appear. Finally, 

it complied with the statutory and regulatory requirements identified in 

Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019), and Matter of 

Bermudez-Cota, 27 I&N Dec. 441, 447 (BIA 2018). 

“It is well settled that an Immigration Judge may only ‘terminate removal 

proceedings under [specific] circumstances identified in the regulations’ and 

where ‘the charges of removability against a respondent have not been 

sustained.’” Matter of J.J. Rodriguez, 27 I&N Dec. at 763 (quoting Matter 

of S-O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G. 2018) (alteration in 

original)). An Immigration Judge is not authorized to terminate proceedings 

because a notice to appear has no alien classification box checked when the 

Act and its implementing regulations do not require one. See United States 

v. Garza-Sanchez, 217 F.3d 806, 810 (9th Cir. 2000) (“We may not read into 

[a] regulation a requirement that it does not impose by its precise terms.”). 

Accordingly, we conclude that the record does not support the Immigration 

Judge’s sua sponte termination of the proceedings on the basis that the notice 

to appear did not sufficiently put the respondent on notice of the nature of 

the proceedings against him.5

C. Burden of Proof

The Immigration Judge also terminated proceedings upon his finding that 

the charge of removability did not sufficiently place the respondent on notice 

of the burden of proof.6

 We disagree. Sections 240(c)(2) and (3) of the Act 

 5 As we have recently held, the rules regarding the initiation of proceedings in 8 C.F.R. 

§ 1003.14 (2020) and related regulations are “claims-processing rules,” which do not 

implicate the subject matter jurisdiction of the Immigration Court, but which may be 

challenged in a timely manner. Matter of Rosales Vargas and Rosales Rosales, 27 I&N 

Dec. 745, 751–53 (BIA 2020). Since the respondent did not appear at his hearing, he did 

not challenge any deficiencies in the notice to appear. Accordingly, there is no claim of 

prejudice to the respondent, so termination is inappropriate for this reason as well. See id.

at 753–54. Even if the respondent had challenged any deficiencies in the notice to 

appear, jurisdiction over the case was established because the notice to appear satisfies 

the regulatory requirements of 8 C.F.R. § 1003.15. See Karingithi v. Whitaker, 913 F.3d 

at 1160 (holding that a notice to appear that met the regulatory requirements vested 

jurisdiction in the Immigration Judge).

6 The Immigration Judge questioned the fact that the notice to appear alleged both that 

the respondent was not admitted or paroled after inspection by an immigration officer and 

that he was an immigrant not in possession of valid documentation. However, the DHS 

charged the respondent with having no valid entry documents under section 212(a)(7) of 

the Act, but not under section 212(a)(6). No argument has been made that the DHS could 
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set forth the applicable burdens of proof on each party depending on whether 

the respondent is an applicant for admission or was previously admitted but 

is subject to removal. 

In the case of an applicant for admission, the alien is charged as 

inadmissible under section 212(a) of the Act. The alien bears the burden of 

establishing either under section 240(c)(2)(A) that he is “clearly and beyond 

doubt entitled to be admitted” or under section 240(c)(2)(B) “by clear and 

convincing evidence, that [he] is lawfully present in the United States 

pursuant to a prior admission.” In the case of an alien who has been admitted 

to the United States, the charge will fall under section 237(a) of the Act, 

and the DHS will bear the burden of establishing “by clear and convincing 

evidence that . . . the alien is deportable.” Section 240(c)(3)(A) of the Act. 

The required contents of the respondent’s notice to appear, namely, the 

allegations and the charge, make clear that he is charged with being 

inadmissible under section 212(a) of the Act. As an applicant for admission, 

therefore, he bears the burden of proof as a matter of law.

7

 Section 240(c)(2) 

of the Act. 

 

not, in its discretion, charge an alien with either or both of these violations of the Act, 

which are not inconsistent or mutually exclusive. Cf. Matter of E-R-M & L-R-M-, 25 I&N 

Dec. 520, 523 (BIA 2011) (holding 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” because “the broad discretion given to the Executive 

Branch regarding charging decisions in the criminal context . . . also appl[ies] to charging 

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

7 Regarding the checkboxes on the notice to appear, both the first box (arriving alien) and 

the second box (alien present in the United States who has not been admitted or paroled) 

apply to applicants for admission. In either case, the charge of removability would fall 

under section 212(a) of the Act and the alien would bear the burden of proof under section 

240(c)(2). 

Amici argue that there is a significant difference under the regulations regarding the 

burden of proof between an arriving alien and an alien present without being admitted. As 

applied to the facts of this case, we disagree. Both categories are indisputably applicants 

for admission. As the DHS argues, the checkboxes, at most, subdivide applicants for 

admission into two categories—arriving aliens and other applicants for admission. That 

information does not alter the facts that the notice to appear plainly placed the respondent 

in removal proceedings and that he is an applicant for admission. 

Under 8 C.F.R. § 1240.8(c) (2020), where the DHS alleges that an alien is present 

without being admitted or paroled, it bears the initial burden of establishing alienage. If 

the DHS proves alienage, the burden shifts to the alien to show by clear and convincing 

evidence that he is lawfully in the United States pursuant to a prior admission. Id. However, 

we need not now resolve whether an indication of this difference in the initial burden of 

proof must be included in the notice to appear under the statute or the regulations. 

Since the respondent did not appear for the hearing, the applicable burden of proof on the 

DHS in presenting its motion for an in absentia removal order is “clear, unequivocal, and 

convincing evidence” under section 240(b)(5)(A) of the Act. 
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Section 235(a)(1) of the Act provides that an “alien present in the United 

States who has not been admitted or who arrives in the United States,”

whether or not at a designated port of arrival, is deemed to be an applicant 

for admission. In turn, an alien who has not demonstrated that he is within 

any of the nonimmigrant classes specified in section 101(a)(15) of the Act, 

8 U.S.C. § 1101(a)(15) (2018), is deemed to be an “immigrant.” Cf. Matter 

of Healy and Goodchild, 17 I&N Dec. 22, 26 (BIA 1979) (holding that where 

an alien has not established his entitlement to status as a nonimmigrant under 

any of the classifications in section 101(a)(15) of the Act, he is properly 

excludable as an immigrant without the requisite travel or entry documents). 

While the exact reasons for the respondent’s application for admission into 

this country are not identified in the Form I-213, there is no indication that 

he is seeking admission as a nonimmigrant, such as a tourist, student, or 

temporary worker. Moreover, applicants for admission bear the burden to 

establish that they are clearly and beyond doubt entitled to be admitted to the 

United States and are not inadmissible. Section 240(c)(2)(A) of the Act; 

8 C.F.R. § 1240.8(c) (2020). 

The fact that no box is checked on the notice to appear does not prevent 

the Immigration Judge from evaluating the allegations of fact against the 

respondent and any evidence presented by the DHS. The Form I-213 alone 

may be sufficient to support a conclusion that the respondent is inadmissible 

under section 212(a)(7)(A)(i)(I) of the Act, and is therefore subject to 

removal, because he is an immigrant who, at the time of his application for 

admission, was not in possession of a valid entry document. See Matter of 

Gomez-Gomez, 23 I&N Dec. at 524 (stating that absent evidence that 

information on a Form I-213 is inaccurate or obtained by coercion, the 

document is inherently trustworthy and admissible to prove alienage or 

deportability). Accordingly, since the respondent has not appeared, the DHS 

has potentially proffered clear, unequivocal, and convincing evidence that he 

is subject to removal from the United States as charged in the notice to 

appear. Section 240(b)(5)(A) of the Act; 8 C.F.R. § 1240.8(c).

We disagree with amici’s contention that “[i]f [the] DHS does not give 

notice of which admission status [the] DHS believes a respondent to hold, 

even the most experienced immigration attorney will be at a loss to fully 

advise a client as to the nature of the removal proceeding and their rights in 

that proceeding based on the [notice to appear].” Amici assert that the aliens 

who have been returned to Mexico under the Migrant Protection Protocols 

are “asylum seekers.” Regardless of whether the notice to appear contains a 

checked box, an alien seeking asylum is required to appear at his scheduled 

removal hearings and file an Application for Asylum and for Withholding of 

Removal (Form I-589). See 8 C.F.R. § 1208.3(a) (2020). An attorney will 

be able to advise an alien that, in order to apply for asylum, he will need to 
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appear at his removal hearings and file a Form I-589. In every proceeding, 

the burden of establishing eligibility for asylum rests on the applicant. 

Section 240(c)(4)(A) of the Act; 8 C.F.R. §§ 1208.13(a), 1240.8(d) (2020). 

As explained in the MPP Sheet, the respondent was informed to attend his 

removal hearing at the Immigration Court in San Diego, California, by 

presenting himself at the port of entry in San Ysidro, California, on the 

morning of May 30, 2019. Had he appeared at the hearing, he could have 

submitted a Form I-589.8

The DHS may opt to provide more information in a notice to appear than 

the law requires, or it may duplicate required information. 9 Ultimately, 

however, we know of no statutory or regulatory requirement that the DHS 

do either, and the respondent and amici have identified none. 

D. Return to a Contiguous Foreign Territory Under

Section 235(b)(2)(C) of the Act

Congress has authorized that an alien “who is arriving on land (whether 

or not at a designated port of arrival) from a foreign territory contiguous to 

the United States” may be returned to that territory pending a proceeding 

under section 240 of the Act. Section 235(b)(2)(C) of the Act. Once the 

DHS places an alien into removal proceedings under section 240 of the Act, 

the alien is entitled to the due process rights afforded in a removal 

proceeding, even if the DHS elects to return the alien to Mexico under the 

Migrant Protection Protocols program. In this case, we resolve the issue 

before us narrowly on the question whether the Immigration Judge properly 

terminated these proceedings for failure of the DHS to indicate the nature of 

the proceedings. 

Given that the respondent did not appear for his hearing, we do not 

address the constitutional or statutory challenges to his return to Mexico 

under the Migrant Protection Protocols, because the notice to appear alleged

he arrived in the United States and he has not been designated as an arriving 

alien. Sections 235(a), (b)(2)(C) of the Act; 8 C.F.R. § 1001.1(q) (2020); 

cf. Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 170 (BIA 2017) (“The 

DHS’s decision to commence removal proceedings involves the exercise of 

 8 To the extent that amici are concerned that it is unclear whether the respondent is 

eligible for a redetermination of his custody status, we note that bond proceedings are 

separate and apart from removal proceedings. 8 C.F.R. § 1003.19(d) (2020). The 

requirements for a notice to appear that are set forth in section 239(a)(1) of the Act and 

8 C.F.R. § 1003.15(b) are applicable to these removal proceedings. We do not address the 

requirements for the notice to appear in the context of other proceedings, such as those 

relating to bond. 

9 As the DHS argues, it may amend the notice to appear or file a Form I-261 (Additional 

Charges of Inadmissibility/Deportability). 8 C.F.R. § 1240.10(e) (2020).
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prosecutorial discretion, and neither the Immigration Judges nor the Board 

may independently review a decision by the DHS to forgo expedited removal 

proceedings or initiate removal proceedings in a particular case.”). 

The provisions governing the entry of in absentia orders of removal 

apply equally to all aliens placed in removal proceedings, including any 

alien who remains in a contiguous foreign territory pursuant to section 

235(b)(2)(C) of the Act. Section 240(b)(5)(E) of the Act. “An alien does 

not need to be physically in the United States for the Immigration Judge 

to retain jurisdiction over pending [removal] proceedings and to conduct 

an in absentia hearing.” Matter of Sanchez-Herbert, 26 I&N Dec. 43, 44

(BIA 2012). Since the DHS has elected to commence removal proceedings 

against the respondent and to prosecute them to a conclusion, the 

Immigration Judge is obligated to order his removal if the evidence supports 

a finding of removability on the ground charged and the respondent has not 

established eligibility for relief. Matter of Roussis, 18 I&N Dec. 256, 258 

(BIA 1982). 

III. CONCLUSION

For the reasons set forth above, we conclude that the absence of a checked 

alien classification box on a notice to appear does not, by itself, render the 

notice to appear fatally deficient or otherwise preclude an Immigration Judge 

from exercising jurisdiction over removal proceedings, and it is therefore 

not a basis to terminate the proceedings of an alien who has been returned 

to Mexico under the Migrant Protection Protocols. Accordingly, we will 

sustain the DHS’s appeal, reinstate the respondent’s removal proceedings,

and remand the record to the Immigration Judge for further proceedings. 

On remand, if the DHS establishes the respondent’s removability based on 

the facts and the evidence, the Immigration Judge should enter an order of 

removal. Matter of Sanchez-Herbert, 26 I&N Dec. at 45. 

ORDER: The appeal of the Department of Homeland Security is 

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

proceedings 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.

CONCURRING OPINION: Edward F. Kelly, Board Member

I join my colleagues in concluding that current law precludes termination 

of these removal proceedings. 
Cite as 27 I&N Dec. 825 (BIA 2020) Interim Decision #3983

836

However, I write separately to emphasize that our decision today 

expresses no opinion as to the unresolved issue of the statutory or 

constitutional authority for the Migrant Protection Protocols program, as 

applied, because any challenge to that program in these removal proceedings 

is collateral in nature. See, e.g., section 235(b)(2)(C) of the Immigration and 

Nationality Act, 8 U.S.C. § 1225(b)(2)(C) (2018) (limiting the authority to 

return aliens to contiguous territory pending removal proceedings to those 

applicants for admission “who are arriving”); see also Innovation Law Lab 

v. Wolf, 951 F.3d 1073 (9th Cir. 2020) (upholding a preliminary injunction 

upon finding that the Migrant Protection Protocols program likely violates 

the statute when applied to aliens who lack valid entry documents), stay 

granted, No. 19A960, 2020 WL 1161432 (U.S. Mar. 11, 2020) (staying 

execution of the preliminary injunction pending the timely filing and 

disposition of a petition for writ of certiorari).