Cite as 28 I&N Dec. 788 (BIA 2024) Interim Decision #4074

788 

Matter of F-C-S-, Respondent

Decided March 14, 2024

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals

The regulation at 8 C.F.R. § 1240.17 (2024) applies only to those respondents placed in 

expedited removal proceedings whose applications for relief and protection were first 

adjudicated by United States Citizenship and Immigration Services and who were then 

placed in removal proceedings under section 240 of the Immigration and Nationality Act, 

8 U.S.C. § 1229a (2018). 

FOR THE RESPONDENT: Stacy Tolchin, Esquire, Pasadena, California 

BEFORE: Board Panel: GREER and GOODWIN, Appellate Immigration Judges; 

PEPPER, Temporary Appellate Immigration Judge. 

GREER, Appellate Immigration Judge: 

 In a decision dated April 11, 2023, the Immigration Judge denied the 

respondent’s applications for withholding of removal under section 

241(b)(3)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 

§ 1231(b)(3)(A) (2018), and protection under the regulations implementing 

the Convention Against Torture (“CAT”).1

 The respondent has appealed 

from that decision, arguing that the Immigration Judge erred in excluding his 

late-filed evidence based on the regulation at 8 C.F.R. § 1240.17 (2024). The 

appeal will be dismissed in part, and the record will be remanded for further 

proceedings. 

I. FACTUAL AND PROCEDURAL HISTORY 

 The respondent is a native and citizen of El Salvador who entered the 

United States on October 16, 2022. The Department of Homeland Security 

(“DHS”) issued a notice to appear, placing him in removal proceedings under 

section 240 of the INA, 8 U.S.C. § 1229a (2018). DHS charged the 

respondent with removability under section 212(a)(7)(A)(i)(I) of the INA, 

8 U.S.C. § 1182(a)(7)(A)(i)(I) (2018), as an immigrant not in possession of 

1

 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or 

Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into 

force for United States Nov. 20, 1994). 
Cite as 28 I&N Dec. 788 (BIA 2024) Interim Decision #4074

789 

valid immigration documents. The respondent conceded removability and 

applied for asylum, withholding of removal, and CAT protection before the 

Immigration Judge.2

 The Immigration Judge scheduled the merits hearing for April 11, 2023, 

and set a filing deadline of April 7, 2023, for the submission of documentary 

evidence. Both parties filed evidence prior to the deadline, but on April 10, 

2023, the respondent submitted a motion to accept an untimely filing. The 

Immigration Judge denied the motion and admitted only the evidence filed 

before the deadline, excluding the two late-filed documents, which she 

marked for identification only. She subsequently conducted a competency 

inquiry due to the respondent’s diagnosis of schizophrenia and determined 

that the respondent was competent to proceed.3

 

 In support of his applications for relief, the respondent testified that 

members of the MS-13 gang confronted him because they believed a tattoo 

on his hand reflected allegiance to the rival 18th Street gang. On a 

subsequent occasion, gang members approached him outside the house he 

lived in with his godfather and cousin, forced him to strip so they could 

examine his tattoos, and asked him if he was related to “the fool.” The 

respondent believed that they were referring to his cousin. The gang 

members then told the respondent that they did not want to see him there 

again, which the respondent took as a warning. 

 Based on these past events, the respondent sought withholding of removal 

because of his familial relationship to his cousin. In addition, he claimed 

harm from gangs and the government due to membership in the proposed 

particular social groups of “individuals with mental illness” and “individuals 

with tattoos who have criminal records.” The Immigration Judge denied the 

respondent’s application for statutory withholding of removal, finding he had 

not demonstrated past persecution or a clear probability of future persecution 

on account of a protected ground. She also denied the respondent’s request 

for protection under the CAT. 

 The respondent challenges the denial of his applications for withholding 

of removal and CAT protection. Regarding withholding of removal, he 

asserts that he has presented valid particular social groups and demonstrated 

a clear probability of persecution on account of his membership in them. He 

also challenges the Immigration Judge’s denial of his motion to accept 

late-filed evidence. In particular, he argues that his removal proceedings are 

governed by 8 C.F.R. § 1240.17, and that the Immigration Judge violated 

2

 The respondent does not challenge the Immigration Judge’s denial of his application for 

asylum. This issue is therefore waived on appeal. See, e.g., Matter of D-G-C-, 28 I&N 

Dec. 297, 297 n.1 (BIA 2021). 

3 The respondent, who has been represented by the same counsel throughout these 

proceedings, has not challenged the Immigration Judge’s competency determination. 
Cite as 28 I&N Dec. 788 (BIA 2024) Interim Decision #4074

790 

8 C.F.R. § 1240.17(k)(6) when she excluded the respondent’s evidence 

submitted after the filing deadline despite his indicia of mental 

incompetency. We address the respondent’s arguments in turn beginning 

with the scope of the regulation at 8 C.F.R. § 1240.17. 

II. ANALYSIS 

A. Applicability of 8 C.F.R. § 1240.17 

 On August 20, 2021, the Department of Justice (“DOJ”) and DHS issued 

a notice of proposed rulemaking entitled Procedures for Credible Fear 

Screening and Consideration of Asylum, Withholding of Removal, and CAT 

Protection Claims by Asylum Officers, 86 Fed. Reg. 46906 (proposed 

Aug. 20, 2021) (to be codified at 8 C.F.R. pts. 208, 235, 1003, 1208, 1235). 

In response to the comments received on the proposed rule, DOJ and DHS 

issued an interim final rule with a further request for comments on March 29, 

2022. Procedures for Credible Fear Screening and Consideration of Asylum, 

Withholding of Removal, and CAT Protection Claims by Asylum Officers, 

87 Fed. Reg. 18078 (Mar. 29, 2022) (interim rule) (to be codified at 8 C.F.R. 

pts. 208, 212, 235, 1003, 1208, 1235, 1240). The interim final rule went into 

effect on May 31, 2022. Id. at 18078, 18089. The rule added new regulations 

at 8 C.F.R. § 1240.17. Id. at 18223–26. 

 These regulations at 8 C.F.R. § 1240.17 are designed to allow asylum 

applications submitted by individuals in expedited removal proceedings to 

first be adjudicated by United States Citizenship and Immigration Services 

(“USCIS”) in a nonadversarial setting. 87 Fed. Reg. at 18079–80; 

see generally INA § 235, 8 U.S.C. § 1225 (2018) (discussing expedited 

removal proceedings). If USCIS denies the application, the asylum applicant 

may seek de novo review in removal proceedings before an Immigration 

Judge. 87 Fed. Reg. at 18080. The individuals covered by the new regulation 

must have “been found to have a credible fear of persecution or torture, and 

[USCIS] subsequently adjudicated but did not grant the respondent’s 

application for asylum.” 8 C.F.R. § 1240.17(a). 

 The respondent argues that 8 C.F.R. § 1240.17 applies to his removal 

proceedings, and thus the Immigration Judge was bound by 8 C.F.R. 

§ 1240.17(g) and (k) when evaluating whether to admit his late-filed 

evidence. The regulation at 8 C.F.R. § 1240.17(g)(1) states, in pertinent part, 

that “[t]he immigration judge shall exclude documentary evidence . . . if the 

documentary evidence is not submitted . . . by the applicable deadline.” “The 

Immigration Judge may consider documentary evidence . . . submitted after 

the applicable deadline . . . only if the evidence could not reasonably have 

been obtained and presented before the applicable deadline through the 
Cite as 28 I&N Dec. 788 (BIA 2024) Interim Decision #4074

791 

exercise of due diligence . . . .” 8 C.F.R. § 1240.17(g)(2). Under 8 C.F.R. 

§ 1240.17(k)(6), however, the restrictions on the consideration of late-filed 

evidence in subsection (g) do not apply to a respondent who “has exhibited 

indicia of mental incompetency.” 

 The respondent argues that the Immigration Judge should have applied 

the regulatory provision at 8 C.F.R. § 1240.17(k)(6) because the record 

contains indicia of incompetency due to his mental health diagnosis. He 

therefore asserts that the Immigration Judge should not have excluded his 

late-filed evidence. Whether the undisputed facts in this case place the 

respondent in proceedings governed by 8 C.F.R. § 1240.17 is a legal issue 

we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2020). 

 The respondent’s removal proceeding are not governed by 8 C.F.R. 

§ 1240.17. After entering the United States, the respondent received a 

negative credible fear determination by DHS, which the Immigration Judge 

reviewed and vacated. The respondent was then placed into removal 

proceedings under section 240 of the INA, 8 U.S.C. § 1229a. He was never 

placed into expedited removal proceedings and USCIS did not adjudicate his 

applications for asylum, withholding of removal, and CAT protection. The 

regulation at 8 C.F.R. § 1240.17 applies only to those respondents placed in 

expedited removal proceedings whose applications for relief and protection 

were first adjudicated by USCIS and who were then placed in removal 

proceedings under section 240 of the INA, 8 U.S.C. § 1229a. It does not 

apply to those respondents placed in section 240 removal proceedings who 

were not first placed in expedited removal proceedings. Thus, this regulation 

does not apply to the respondent’s removal proceedings.4

C. Relief and Protection from Removal 

 The Immigration Judge denied statutory withholding of removal, finding 

that the respondent had not demonstrated past persecution or a clear 

probability of future persecution on account of a cognizable particular social 

group. The respondent has not shown a clear probability of future 

persecution linked to a familial relationship to his cousin.5

 The Immigration 

Judge did not clearly err in finding that the gang members did not identify 

the respondent’s cousin or express an interest in the respondent because of 

his relationship to his cousin when they approached the respondent outside 

4 Although the respondent raises other arguments regarding the admission of his late-filed 

evidence, we need not address these arguments because his proceedings will be remanded 

to the Immigration Judge for the reasons discussed below. 

5

 The respondent has not disputed the Immigration Judge’s determination that his past 

incidents did not involve harm rising to the level of persecution. This issue is therefore 

waived on appeal. See, e.g., Matter of D-G-C-, 28 I&N Dec. at 297 n.1.
Cite as 28 I&N Dec. 788 (BIA 2024) Interim Decision #4074

792 

of his godfather’s house. See Matter of N-M-, 25 I&N Dec. 526, 532 

(BIA 2011) (“A persecutor’s actual motive is a matter of fact to be 

determined by the Immigration Judge and reviewed by [the Board] for clear 

error.”). Nothing else in the record establishes that the gang members were 

targeting the respondent on account of his relation to his cousin. The 

respondent has therefore not demonstrated the requisite nexus to his 

proposed family-based social group, which is dispositive of his claim for 

withholding of removal on this basis. See Vazquez-Guerra v. Garland, 

7 F.4th 265, 270–71 (5th Cir. 2021) (holding that an applicant for 

withholding of removal claiming harm based on his family membership did 

not satisfy the applicable one central reason standard). 

 Regarding the respondent’s two remaining proposed particular social 

groups, we will remand to the Immigration Judge for further development of 

the record. The Immigration Judge’s decision contains conflicting legal 

conclusions about the validity of these proposed particular social groups and 

is otherwise incomplete as to the remaining elements of the claim for 

withholding of removal, which includes feared future harm from government 

and private actors. 

 In addition, the Immigration Judge did not make specific factual findings 

about the evidence considered in support of her legal determinations. 

Notably, the Immigration Judge’s decision is unclear regarding whether she 

considered the late-filed evidence in evaluating the respondent’s applications 

for relief. In her decision, the Immigration Judge stated that she had excluded 

the late-filed evidence. However, she subsequently stated in her analysis that 

she had reviewed it, and she referenced it in evaluating the respondent’s 

claim. Excluded evidence or evidence marked for identification only should 

not be considered in resolving issues or adjudicating applications. See

INA § 240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A) (“The determination of the 

immigration judge shall be based only on the evidence produced at the 

hearing.”); see also INA § 240(c)(4)(B), 8 U.S.C. § 1229a(c)(4)(B) (stating 

that when adjudicating an application for relief, “the immigration judge shall 

weigh the credible testimony along with other evidence of record”). If 

considered, evidence should be admitted into the record and assigned 

appropriate weight. 

 Remand is also necessary for the Immigration Judge to further address 

the respondent’s application for CAT protection. Specifically, the 

Immigration Judge should address feared sources of torture beyond gang 

violence, including the respondent’s fear of government actors. See, e.g.,

Chen v. Gonzales, 470 F.3d 1131, 1139–43 (5th Cir. 2006) (analyzing 

separate sources of feared torture). 
Cite as 28 I&N Dec. 788 (BIA 2024) Interim Decision #4074

793 

III. CONCLUSION 

 The respondent is not included in the category of individuals covered by 

the regulation at 8 C.F.R. § 1240.17 because he was not initially placed in 

expedited removal proceedings and USCIS did not adjudicate his asylum 

application. Therefore, the regulatory paragraphs at 8 C.F.R. § 1240.17(g) 

and (k)(6) related to evidentiary filing deadlines do not apply in these 

proceedings. 

 We affirm the Immigration Judge’s determination that the respondent has 

not established a nexus to his family-based particular social group, which is 

dispositive of his application for withholding of removal based on this 

ground. We will, however, remand the record for additional fact-finding and 

legal analysis as to the elements of the respondent’s claim based on the 

remaining two proposed particular social groups and his eligibility for CAT 

protection. 

 On remand, the Immigration Judge should consider the evidence 

previously submitted, and the parties may submit additional evidence 

according to deadlines set by the Immigration Judge. See Matter of R-C-R-, 

28 I&N Dec. 74, 77 (BIA 2020) (citing to Matter of Interiano-Rosa, 25 I&N 

Dec. 264, 265 (BIA 2010), regarding an Immigration Judge’s authority to 

control proceedings and set filing deadlines); see also 8 C.F.R. §1003.31(h) 

(2024) (providing authority to Immigration Judges to “set and extend time 

limits for the filing of applications and related documents” and to deem 

waived documents not filed by the deadline). We express no opinion as to 

the outcome of the case on remand. Accordingly, the respondent’s appeal 

will be dismissed in part, and the record will be remanded to the Immigration 

Judge. 

 ORDER: The appeal is dismissed in part, and the record is remanded to 

the Immigration Judge for further proceedings consistent with the foregoing 

opinion and for the entry of a new decision.