F-C-S

Cite as 

 (BIA 2024)                                 Interim Decision #4074




                         Matter of F-C-S-, Respondent
                       Decided as amended April 16, 20241

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


  The regulation at 

 (2024) applies only to those respondents first placed
in expedited removal proceedings whose applications for relief and protection were
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

FOR THE DEPARTMENT OF HOMELAND SECURITY: Cassidy Cloninger, Associate
Legal Advisor

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”), 

(b)(3)(A) (2018), and protection under the regulations implementing
the Convention Against Torture (“CAT”).2 The respondent has appealed
from that decision, arguing that the Immigration Judge erred in excluding his
late-filed evidence based on the regulation at 

 (2024). The
appeal will be dismissed in part, and the record will be remanded for further
proceedings.




                                 
1
   We amend the April 3, 2024, order in this case in response to the Department of
Homeland Security’s motion and to clarify issues regarding the procedural context of the
decision.
2
    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).

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             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,

(a)(7)(A)(i)(I) (2018), as an immigrant not in possession of
valid immigration documents. The respondent conceded removability and
applied for asylum, withholding of removal, and CAT protection before the
Immigration Judge.3
    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.4
    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

                                 
3
    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-, 

, 297 n.1 (BIA 2021).
4
   The respondent, who has been represented by the same counsel throughout these
proceedings, has not challenged the Immigration Judge’s competency determination.

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 (BIA 2024)                       Interim Decision #4074




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 

, and that the Immigration Judge violated

(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 

.

                               II. ANALYSIS
                   A. Applicability of 

    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, 

 (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,

 (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. 

. The rule added new regulations
at 

. 

 at 18223–26.
    These regulations at 

 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, 

 (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.” 

(a).

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 (BIA 2024)                                 Interim Decision #4074




    The respondent argues that 

 applies to his removal
proceedings, and thus the Immigration Judge was bound by 

(g) and (k) when evaluating whether to admit his late-filed
evidence. The regulation at 

(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
exercise of due diligence . . . .” 

(g)(2). Under 

(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 

(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 

 is a legal issue
we review de novo. 

(d)(3)(ii) (2020).
    The respondent’s removal proceedings are not governed by 

. After entering the United States, the respondent was placed into
expedited removal proceedings and 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. Although he was initially subject to expedited
removal procedures, USCIS did not adjudicate his applications for asylum,
withholding of removal, and CAT protection. The regulation at 

 applies only to those respondents first placed in expedited removal
proceedings whose applications for relief and protection were adjudicated by
USCIS and who were then placed in removal proceedings under section 240
of the INA, 8 U.S.C. § 1229a. Thus, this regulation does not apply to the
respondent’s removal proceedings.5

                     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
                                
5
  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.

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 (BIA 2024)                                Interim Decision #4074




group. The respondent has not shown a clear probability of future
persecution linked to a familial relationship to his cousin.6 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
of his godfather’s house. See Matter of N-M-, 

(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,

, 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.
                                
6
   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.

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 (BIA 2024)                      Interim Decision #4074




   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, 

, 1139–43 (5th Cir. 2006) (analyzing
separate sources of feared torture).

                             III. CONCLUSION
    The respondent is not included in the category of individuals covered by
the regulation at 

 because although he was originally
subject to expedited removal procedures, USCIS did not adjudicate his
asylum application. Therefore, the regulatory paragraphs at 

(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-,

, 77 (BIA 2020) (citing to Matter of Interiano-Rosa, 

 (BIA 2010), regarding an Immigration Judge’s authority to
control proceedings and set filing deadlines); see also 

(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.




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