U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesburg Pike, Suite 2000 Falls Cli11rclr, Virginia 22041

Pllmack, Michael Covington & Burling LLP One Front Street San Francisco, CA 94111

OHS/ICE Office of Chief Counsel 1115 N. Imperial Ave. El Centro, CA 92243

ELC

Immigrant & Refugee Appellate Center | www.irac.net

Name: TAPIA-FIERRO, JOSE LUIS

A091-456-635

Date of this notice: 3/19/2012

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: Pauley, Roger

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jose Luis Tapia-Fierro, A091 456 635 (BIA Mar. 19, 2012)

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U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

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File:

A091 456 635 - El Centro, CA

Date:

MAR 192012

In re: JOSE LUIS TAPIA-FIERRO

IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Michael K. Plimack, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

John D. Holliday Assistant Chief Counsel

APPLICATION:

Reconsidertio11

The respondent timely moves the Board pursuant to 8 C.F.R. 1003.2 to reconsider our decision dated August 3, 2011. In that decision, we concluded that the Immigration Judge had correctly found that the respondent was not removable as charged and bad correctly terminated removal proceedings. Accordingly, we dismissed the DHS's appeal arguing that the Immigration Judge's decision terminating removal proceedings
was

in error.

Nevertheless, we remanded the record to the

Immigration Judge to allow the DHS to lodge charges of deportability against the respondent, which the DHS indicated it wished to do if we dismissed its appeal. It is this aspect of our decision that the respondent now argues should be reconsidered. The DHS opposes the respondent's motion. The motion will be denied. A motion to reconsider shall specify the errors of fact or law in the prior Board decision and shall be supported by pertinent authority. See 8 C.F.R. 1003.2(b)(1 ). We find no such errors in our prior decision. In his motion, the respondent argues that the Board erred in remanding this matter because the DHS has not met the requirements for same, to include presenting new and material evidence that was not available and could not have been discovered or presented at the former hearing, as required under 8 C.F.R. 1003.2(c)(l). While we have held that motions to remand must generally comply with the requirements set forth for motions to reopen, we have also indicated that, where a motion to remand simply articulates the remedy requested by an appeal, we treat it as part of the appeal, and do not require it to conform to the standards for consideration of motions. Matter ofCoelho, 20 I&N Dec. 464, 471 (BIA 1992). In this case, the DHS's request that we remand proceedings to allow it to lodge deportability charges in the event that we found that the respondent was not amenable to inadmissibility charges was part and parcel of its appeal, such that the DHS was not required to comply with the requirements for motions to reopen. The respondent also argues that the DHS effectively waived its right to lodge additional charges in this matter because the Immigration Judge allowed the DHS to do so below, but it did not do so. The respondent argues that allowing DHS to lodge additional charges on remand would conflict with

8 C.F.R. 1003.31, which allows the Immigration Judge to set and extend time limits for the filing
of applications and related documents and responses thereto, and indicates that any application or

Cite as: Jose Luis Tapia-Fierro, A091 456 635 (BIA Mar. 19, 2012)

A091456 635
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document not filed within the time limit set by the Immigration Judge shall be deemed waived. However, as this regulation is limited on its face to applications for relief and related documents, it would not extend to the filing of a Form I-261, Additional Charges oflnadmissibility/Deportability.
In any case, we find that the general rule set forth at

8 C.F .R. 1003 .31 would not trump 8 C.F .R.

1003.30, which specifically permits the OHS to lodge additional barges deportability "[a]t any time during deportation or removal proceedings." In addition, the respondent argues that allowing the OHS to lodge additional charges of deportability on remand would allow the DHS to pursue piecemeal litigation, in violation of public policy, and would violate notions of "elementary fairness." Such arguments are beyond the jurisdiction of the immigration courts and the Board. See, e.g., Matter ofHernandez-Puente, 20 I&N Dec. 335 (BIA 1991) (stating that this Board is withoutjurisdiction to apply the doctrine of equitable estoppel to prevent the government from pursuing a lawful course of action which it is empowered to pursue). Finally, the respondent has submitted the transcript of proceedings from a district court proceeding dated September 19, 2011, concerning the issue of bond. While it is well-established that bond proceedings are separate and apart from removal proceedings, the respondent argues that it is relevant in that the judge found that the inadmissibility charges under section 212 of the Act filed against the respondent could not be sustained because the respondent was in the status of an admitted lawful permanent resident, and that the sole charge under section 237 of the Act brought against the respondent many years ago had been found to be not sustained following the issuance of Leocal v. Ashcroft, 543 U.S. 1, 11 (2004). Indeed, the decisions of the Immigration Judges and the Board in this matter reflect the same understanding. However, this observation has no bearing on whether, on remand, the OHS opts to lodge additional charges of deportability under section 237 of the Act, or whether the respondent will be found to be deportable under such new charges. Accordingly, the following order will be entered. ORDER: The motion is denied.

Immigrant & Refugee Appellate Center | www.irac.net

lac-/Lf
FOR THE BOARD

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Cite as: Jose Luis Tapia-Fierro, A091 456 635 (BIA Mar. 19, 2012)