Background
Petitioners sought review of decisions by the Immigration Judge and the Board of Immigration Appeals to pretermit their applications for asylum, withholding of removal, and Convention Against Torture relief. The Board affirmed the Immigration Judge’s decision citing Burbano, deeming all issues exhausted. The Immigration Judge had required petitioners to file proof of active pursuit of biometrics compliance but never ordered them to complete biometrics by a specific date or informed them directly of their obligations.
The court’s reasoning
The court held that where the Board of Immigration Appeals issues a Burbano affirmance, the court reviews the Immigration Judge’s decision as if it were the decision of the Board. The Immigration Judge abused its discretion by pretermitting the applications because it failed to provide adequate notice of the biometrics obligations under the relevant regulation. The Judge never ordered the petitioners to complete biometrics by a certain date and communicated directions only through counsel without an interpreter, unlike in Gonzalez-Veliz where adequate notice was found.
What it means going forward
The case is remanded to the Board of Immigration Appeals for further proceedings consistent with the court’s decision, and the motion to stay removal is granted pending issuance of the mandate.