U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Corcoran, Stephanie Marie OHS/ICE Office of Chief Counsel - PHO
Corcoran Law Group 2035 N. Central Ave.
934 W. McDowell Road Phoenix, AZ 85004
Phoenix, AZ 85007

Name: M C , F ... A -037

Date of this notice: 3/17/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Kendall Clark, Molly
Guendelsberger, John
Neal, David L

:.: II!<;!
Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: F-R-M-C-, AXXX XXX 037 (BIA March 17, 2017)
 .

U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review
'

Falls Church, Virginia 22041

File: 037 -Phoenix, AZ Date:

MAR 1 7 2017
In re: F R -C

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IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Stephanie Marie Corcoran, Esquire

ON BEHALF OF OHS: James A. Harmony

Assistant Chief Counsel

APPLICATION: Termination

The respondent, a native and citizen of Mexico, timely appeals from the Immigration Judge's
June 24, 2016, decision. In that decision, the Immigration Judge granted the Department of
Homeland Security's ("OHS") motion to terminate proceedings on the ground that the Notice to
Appear (Form I-862) had been improvidently issued. The OHS moves for summary affirmance.
The appeal will be sustained and the record will be remanded.

The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony and the likelihood of future events, under the "clearly erroneous"
standard. 8 C.F.R. 1003.l(d)(3)(i). See Matter o/Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions of Immigration Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii).

The respondent applied for asylum with the U.S. Citizenship and Immigration Services
("USCIS") on September 14, 2011 (Exh. 2). He subsequently withdrew his asylum application
before the USCIS. On December 2, 2014, the USCIS referred the case to an Immigration Judge
and issued a Notice to Appear, which was filed with the Immigration Court on December 4, 2014
(Exhs. 1, 2). At the March 23, 2016, master calendar hearing, the respondent conceded his
removability and sought to reassert his asylum application and in the alternative to apply for
cancellation of removal (Tr. at 3). The OHS moved to terminate proceedings based on the
ground that the Notice to Appear was improvidently issued, citing that the respondent was not an
enforcement priority (Tr. at 4-5). The respondent argued that he was eligible to reassert his
asylum application and to apply for cancellation of removal for certain nonpermanent residents
and wanted to proceed with those forms of relief. The Immigration Judge requested briefing
from the respondent on his eligibility for relief (Tr. at 6). The Immigration Judge later granted
the DHS's motion and terminated proceedings without prejudice in a written decision (I.J. at 1-2).

The regulation at 8 C.F.R. 208.14(c)(l) provides, in pertinent part, that, with an exception
not relevant here, in the case of an applicant who appears to be inadmissible under section 212(a)
of the Immigration and Nationality Act, 8 U.S.C. l182(a), the asylum officer shall refer the
application to an Immigration Judge, together with the appropriate charging document, for

Cite as: F-R-M-C-, AXXX XXX 037 (BIA March 17, 2017)
 037

adjudication in removal proceedings. There is no issue in this case concerning the respondent's
inadmissibility under section 212(a)(6)(A)(i) of the Act [present without being admitted or
paroled]. The regulation at 8 C.F.R. 1239.2(c) provides, in pertinent part, that after
commencement of proceedings, government counsel may move for dismissal of the matter on the
grounds set out under 8 C.F.R. 239.2(a). The OHS relied on 8 C.F.R. 239.2(a)(6) (the Notice
to Appear was improvidently issued). Although the respondent withdrew his asylum application

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before the USCIS, we conclude that the Notice to Appear was not improvidently issued. The
regulation at 8 C.F.R. 208.14(c)( l) does not limit the referral only to adjudication of the
asylum application. In contrast, the referral to an Immigration Judge in asylum and/or
withholding proceedings limits the relief or protection from removal available to the applicants.
For example, for aliens whose removal order is reinstated under section 24 l(a)(5) of the Act,
8 U.S.C. 123l(a)(5), referral pursuant to 8 C.F.R. 208.3l(e) is limited to consideration of the
request for withholding of removal only. In the present case, the respondent appears eligible to
renew his applications for asylum and related relief and to apply for cancellation of removal for
certain nonpermanent residents. We will remand the record to the Immigration Judge to allow
the respondent to apply for such relief.

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

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.

Cite as: F-R-M-C-, AXXX XXX 037 (BIA March 17, 2017)
.. .

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
PHOENIX, ARIZONA

In Re )

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)
F R M C ) File Number: A 037
)
) In Removal Proceedings
)
Respondent. ) JUN 2 It 2016

ORDER

The respondent, F R M C , was placed in proceedings after he

filed an application for asylum with the Asylum Office. Thereafter, the Asylum office attempted to
interview respondent regarding the claim. Rather than show up at the interview, the respondent,
upon advice of counsel, withdrew the asylum application. The Asylum Office referred the matter
to this Court by issuance of a Notice to Appear (NTA), dated December 2, 2014.

At a Master Calendar hearing conducted on March 23, 2016, DHS moved to terminate
these proceedings, noting respondent's intentional withdrawal of the asylum application. DHS
argued that the matter was not a priority and the NT A was improvidently issued.

Respondent requested an opportunity to brief the issues. This Court established a briefing
schedule, requiring respondent's brief by May 23, 2016. Respondent filed a brief on May 23, 2016.
This Court has reviewed respondent's brief.

Respondent argues that even though he was given an opportunity to exercise his rights
before an asylum officer (tasked by law and regulation to hear his claim), and even though he
affirmatively elected to withdraw his application (thereby preventing the asylum office from
considering his claim), he should be given another opportunity to renew his claim.

It appears that respondent, through counsel, injected himself into these proceedings. He
had not come to the attention of the Government and OHS was virtually unaware of his existence.
Further, the sheer number of these cases involving aliens filing asylum applications, and then
withdrawing them and failing to appear for the asylum interview, suggests that respondents and
counsel are simply filing these applications to obtain referral to Immigration Court. I Many of
these asylum applications state no claim; others cite a "cookie cutter" claim that fails to articulate
any cognizable group or theory. This Court believes that the respondent and counsel are abusing
the asylum process by filing non-meritorious claims simply to get into Court. Such conduct must

I This Court has referred this matter and numerous other cases from this attorney (based on her employment with a
different law firm), and other law firms involving these issues to EOIR's Disciplinary Counsel.
:

not be condoned and borders on professional misconduct.

Based on DHS motion to terminate this matter (as improvidently issued and lack of
priority); having considered respondent's brief and theory regarding asylum, withholding, and
CAT, and considering the procedural facts of this case, the Court enters the following order:

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THESE PROCEEDINGS ARE TERMINATED WITHOUT PREJUDICE TO THE
GOVERNMENT TO REFILE.

Dated: JuneZ Y, 2016

Serve: Office of the Chief Counsel

Respondent's Counsel