M-D

Cite as 

 (BIA 2007)                                Interim Decision #3561




                             In re M-D-, Respondent
                               Decided April 12, 2007
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) When a case is remanded to an Immigration Judge for completion of the appropriate
   background checks, the Immigration Judge is required to enter a final order granting or
   denying the requested relief.

(2) Although an Immigration Judge may not reconsider the prior decision of the Board of
   Immigration Appeals when a case is remanded for background checks, the Immigration
   Judge reacquires jurisdiction over the proceedings and may consider additional evidence
   regarding new or previously considered relief if it meets the requirements for reopening
   of the proceedings.

FOR RESPONDENT: Love Macione, Esquire, Oakland, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Harold L. Pickering, Assistant
Chief Counsel
BEFORE: Board Panel: OSUNA, Acting Chairman; HOLMES and GRANT, Board
        Members.
OSUNA, Acting Chairman:

   This case was last before us on April 28, 2005, when we sustained the
respondent’s appeal in part, determined that she was entitled to withholding
of removal, and remanded the record for the appropriate background checks
and entry of an order in accordance with 

(h) (2005). On
September 1, 2005, the Immigration Judge issued an order stating that the
background checks had been completed. The respondent timely appealed,
arguing that the Immigration Judge erred in refusing to consider new evidence
that she was eligible for adjustment of status. In addition, the respondent filed
a motion to remand. The appeal will be sustained, the motion will be denied
as moot, and the record will be remanded for further proceedings.

              I. FACTUAL AND PROCEDURAL HISTORY
  The respondent is a native and citizen of Guinea who entered the United
States as a nonimmigrant in November 1997 and remained longer than
permitted. In a decision dated October 17, 2003, the Immigration Judge

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denied her applications for relief based on her claim of persecution but
granted her request for voluntary departure. The record reflects that the
respondent married a United States citizen on February 28, 2005, while her
appeal was pending before us.
   When the record was before the Immigration Judge pursuant to our decision
to remand for background checks, the respondent requested that he consider
her application for adjustment of status. The Immigration Judge declined to
entertain the application because he found that jurisdiction continued to rest
with the Board, which had issued a final decision. Consequently, when the
Department of Homeland Security (“DHS”) notified the Immigration Judge
that the background checks had been completed and that no new information
had been revealed, the Immigration Judge issued an order stating that the
security checks were completed and clear. The respondent then appealed and,
in addition, filed a motion to remand based on her application for adjustment
of status.
   On appeal, the respondent contends that because our remand pursuant to

(h) was not specifically limited and we did not clearly
retain jurisdiction, the Immigration Judge had jurisdiction to consider her
application for adjustment of status under Matter of Patel, 

(BIA 1978). The DHS contends that the remand was specifically limited to
completion of the background checks and consideration of the effect of the
background checks on the recommended relief, so the Immigration Judge did
not have jurisdiction to consider the adjustment of status application. The
DHS also contends that the appeal should be dismissed because it is
interlocutory in nature since a final order has not yet been entered.
                                II. ANALYSIS
                            A. Interlocutory Appeal

   To avoid piecemeal review of the myriad questions that may arise in the
course of proceedings before us, we do not ordinarily entertain interlocutory
appeals. See Matter of Ruiz-Campuzano, 

 (BIA 1979);
Matter of Ku, 

 (BIA 1976); Matter of Sacco, 

 (BIA 1974). On occasion, however, we have ruled on the merits of
interlocutory appeals where we deem it necessary to address important
jurisdictional questions regarding the administration of the immigration laws,
or to correct recurring problems in the handling of cases by Immigration
Judges. See, e.g., Matter of Guevara, 

 (BIA 1990, 1991),
and cases cited therein; Matter of Dobere, 

 (BIA 1990).
Because there are recurring questions regarding jurisdiction when a
proceeding is remanded for background checks, we conclude that it is
appropriate for us to rule on this interlocutory appeal in order to provide
guidance to the Immigration Judges and the parties.

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        B. Final Order Following a Remand for Background Checks

  In Matter of Alcantara-Perez, 

 (BIA 2006), which
was published after the Immigration Judge issued his September 1, 2005,
order, we gave the following explanation regarding background checks:
        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, 

, 4743 n.1 (Jan. 31, 2005) (to be codified at
      

(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 

(d)(6)).

   In the instant case, we disagreed with the Immigration Judge with respect
to his denial of withholding of removal. We found that the respondent was
eligible for withholding and that such relief was merited. However, because
the background check regulations applied and it was unclear whether the
appropriate checks had been completed, we were prohibited from issuing a
decision specifically granting withholding to the respondent. See 

(d)(6) (2005); see also Matter of Alcantara-Perez, supra. We
therefore remanded the record to the Immigration Judge in accordance with

(d)(6)(ii)(A) and 1003.47(h) so that the DHS could
conduct the appropriate background checks. Once the background checks
were completed, the Immigration Judge was required to issue a final order
granting or denying the requested relief.1 Matter of Alcantara-Perez, supra,
at 884-85; 

(h). Because the Immigration Judge failed to
enter such an order, a remand is again necessary.



1
  When referenced in connection with the background check regulations, the term “relief”
includes any form of relief that permits an alien to reside in the United States, including
withholding of removal and protection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature
Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18,
1988) (“Convention Against Torture”). See 

(b)(7); Background and
Security Investigations in Proceedings Before Immigration Judges and the Board of
Immigration Appeals, 

, 4743 n.1 (Jan. 31, 2005) (Supplementary
Information). However, a grant of voluntary departure is specifically excepted from the
application of the background check regulations. See 

(j).

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               C. Scope of an Immigration Judge’s Jurisdiction
                    During a Background Check Remand

   The related issue in this case concerns the scope of the Immigration Judge’s
jurisdiction once we have remanded a matter under the background check
regulations. The Immigration Judge determined, and the DHS agrees, that he
lacked jurisdiction to consider the respondent’s application for adjustment of
status because the sole purpose for our remand was to allow the DHS to notify
the Immigration Judge of the status of the respondent’s background checks.
The respondent counters that the Immigration Judge had reacquired
jurisdiction as a result of the remand and therefore could have considered her
adjustment application.
   We observe that nothing in the background check regulations indicates that
we retain jurisdiction when we remand pursuant to those regulations.
Moreover, neither the background check regulations nor the supplemental
information accompanying the regulations states that a background check
remand is limited solely to consideration of the recommended relief. We note
in this regard that we have historically treated a remand as effective for
consideration of all matters unless it is specifically limited to a stated purpose.
See Matter of Patel, supra.2
   The Immigration Judge in this case expressed understandable concerns
regarding his jurisdiction. We now clarify that when a case is remanded to an
Immigration Judge for the appropriate background checks pursuant to

(h), the Immigration Judge reacquires jurisdiction over the
proceedings. Although the Immigration Judge may not reconsider the
decision of the Board, if the background checks reveal new evidence
potentially affecting relief, the Immigration Judge must consider such
evidence before entering an order. See Matter of Alcantara-Perez, supra.
Furthermore, since no final order exists and a remand has traditionally been
treated as effective for all purposes, the Immigration Judge has authority to
consider additional evidence if it is material, was not previously available, and
could not have been discovered or presented at the former hearing. See
generally Matter of Coelho, 

 (BIA 1992); 8 C.F.R.




2
  Although not binding in the United States Court of Appeals for the Ninth Circuit, which
has jurisdiction over this case, a Third Circuit decision has stated that a remand for
consideration of a claim to protection under the Convention Against Torture did not limit
the Immigration Judge’s jurisdiction to consideration of that relief alone, because an
Immigration Judge’s jurisdiction is only narrowed when the Board expressly retains
jurisdiction and qualifies or limits the remand to a specific purpose. Johnson v. Ashcroft,

 (3d Cir. 2002).

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§ 1003.23(b)(3) (2006).3 In other words, the Immigration Judge has authority
to consider new evidence if it would support a motion to reopen the
proceedings. Thus, if the proffered evidence meets these requirements, the
Immigration Judge may consider it, whether “reopening” an issue previously
decided or considering additional forms of relief, and may conduct further
proceedings addressing the evidence as it relates to the relief requested before
entering a new decision in that regard.
   In this case, we are required to remand the record for the Immigration Judge
to enter a final order pursuant to 

(h). We will therefore
deny the respondent’s motion to remand as moot and express no opinion as to
whether the evidence she submitted meets the standards outlined above. On
remand, the Immigration Judge should consider the respondent’s evidence and
enter a new decision consistent with this opinion.
   ORDER: The respondent’s interlocutory appeal is sustained.
   FURTHER ORDER: The motion to remand is denied as moot. The
record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.




3
 Since a final order has not yet been entered, neither the time and number limitations of a
motion to reopen nor the requirement to show changed country conditions if an asylum or
withholding application is involved would apply. See 

(b)(1), (4).

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