R-C-R

Cite as 28 I&N Dec. 74 (BIA 2020) Interim Decision #3994

Matter of R-C-R-, Respondent

Decided August 31, 2020

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) After an Immigration Judge has set a firm deadline for filing an application for relief,

the respondent’s opportunity to file the application may be deemed waived, prior to a

scheduled hearing, if the deadline passes without submission of the application and no good

cause for noncompliance has been shown.

(2) The respondent failed to meet his burden of establishing that he was deprived of a full

and fair hearing where he has not shown that conducting the hearing by video conference

interfered with his communication with the Immigration Judge or otherwise prejudiced him

as a result of technical problems with the video equipment.

FOR RESPONDENT: David J. Rozas, Baton Rouge, Louisiana

FOR THE DEPARTMENT OF HOMELAND SECURITY: Dawn M. Carter, Assistant

Chief Counsel

BEFORE: Board Panel: MULLANE, KELLY, and GORMAN, Appellate Immigration

Judges.

GORMAN, Appellate Immigration Judge:

In a decision dated December 13, 2019, an Immigration Judge found the

respondent removable and ordered him removed after determining that he

failed to timely submit an application for asylum, 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”). 1 The

respondent has appealed from that decision. The appeal will be dismissed.

1

Removal proceedings before the Immigration Judge in this matter were completed in

Richwood, Louisiana, where the respondent was located and the hearing was docketed.

The Immigration Judge conducted the hearing remotely from the administrative control

Immigration Court in Batavia, New York, via video conference pursuant to section

240(b)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(2)(A)(iii)

(2018). An administrative control court creates and maintains records of proceedings for

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I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Guatemala, who entered the

United States on March 13, 2019. The Department of Homeland Security

(“DHS”) detained the respondent and charged him with removability under

sections 212(a)(6)(A)(i) and (7)(A)(i)(I) of the Immigration and Nationality

Act, 8 U.S.C. §§ 1182(a)(6)(A)(i) and (7)(A)(i)(I) (2018), as an alien who is

present in the United States without being admitted or paroled and as one

who had no valid entry document at the time he applied for admission.

At a video conference hearing held on November 6, 2019, the respondent,

who remained detained, appeared without counsel and admitted the factual

allegations and charges of removal against him. 2 Through an interpreter, he

indicated that he understood “more Spanish than Mam,” and his proceedings

continued with interpretation in the Spanish language. The respondent

indicated his desire to apply for asylum, withholding of removal, and relief

under the Convention Against Torture and was given an Application for

Asylum and for Withholding of Removal (Form I-589) to complete. 3 The

Immigration Courts within an assigned geographical area. See 8 C.F.R. § 1003.11 (2020).

The circuit law applied to proceedings conducted via video conference is the law governing

the docketed hearing location, as opposed to the location of the administrative control court.

The docketed hearing location in Richwood, Louisiana, is within the geographic area of

the United States Court of Appeals for the Fifth Circuit. Therefore, like the Immigration

Judge, we apply the law of that circuit. See, e.g., Luziga v. Att’y Gen. of U.S., 937 F.3d

244, 250 (3d Cir. 2019) (applying Third Circuit law where the Immigration Judge appeared

by video conference from Arlington, Virginia, (outside the circuit) to preside over

proceedings in York, Pennsylvania (within the circuit)); Medina-Rosales v. Holder, 778

F.3d 1140, 1143 (10th Cir. 2015) (stating that “the law of the circuit where the video

conference hearing is held is the applicable law” and holding that the docketed hearing

location does not change merely because an Immigration Judge appears by video

conference from a different location). But see Chavez-Vasquez v. Mukasey, 548 F.3d 1115,

1118 n.1 (7th Cir. 2008) (“Venue is determined by the location of the immigration court

rather than the by location from which witnesses appear via teleconference.”); Ramos

v. Ashcroft, 371 F.3d 948, 949 (7th Cir. 2004) (denying the Government’s request to

transfer the proceedings to a different circuit because “the alien may petition for review in

the circuit where the immigration court is located”).

2

The Immigration Judge gave the respondent the procedural advisals required by the

regulations, explained the removal charges against him, took pleadings, and found the

respondent removable as charged. See 8 C.F.R. § 1240.10(a)(1)–(6), (c) (2020). The

respondent has not challenged the Immigration Judge’s finding of removability on appeal,

so that issue is not before us. See, e.g., Matter of A.J. Valdez and Z. Valdez, 27 I&N Dec.

496, 496 n.1, 498 n.3 (BIA 2018) (noting that an issue addressed in an Immigration Judge’s

decision is waived when a party does not challenge it on appeal).

3

The Immigration Judge gave the following explanation to the respondent: “You must

fill out that application in the English language, you must answer all the questions truthfully,

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Immigration Judge explicitly instructed the respondent to submit the

completed application to the Immigration Court no later than December 6,

2019, and advised him that his opportunity to file the application would be

deemed waived if he failed to comply with the deadline. 4 She also notified

the respondent that his next hearing would be scheduled for January 14,

2020.

Despite the Immigration Judge’s explicit instructions, the respondent did

not file an application for relief from removal by the December 6, 2019,

deadline. After an additional week had passed, the Immigration Judge issued

a written order on December 13, 2019, finding that the respondent had

waived his opportunity to file the application and ordering him removed.

On appeal, the respondent argues that the Immigration Judge erred in

finding that he had waived his right to apply for relief and in ordering his

removal prior to the hearing scheduled for January 14, 2020. The respondent

claims that the Immigration Judge violated his right to due process by

requiring him to file the application a month before the next hearing, not

allowing him to file an application at that hearing, and not letting him explain

the reasons for missing the deadline. The respondent further contends that

because he was not given an opportunity to appear at the next scheduled

hearing, the record is incomplete and not subject to meaningful review.

Additionally, the respondent argues that he was denied a full and fair

hearing because his removal proceedings were conducted via a video

conference at which he was unrepresented, detained, and had a Spanish

translator. According to the respondent, he “might easily have been

confused” about the nature and purpose of the second hearing as a result of

these conditions. We review these questions of law de novo. See 8 C.F.R.

§ 1003.1(d)(3)(ii) (2020).

and if there’s any papers or documents that you’d like to attach to that asylum application,

regarding your fear of return to Guatemala, if those papers or documents are in the Spanish

language, they must be translated to the English language and there must be a certificate of

translation which establishes that the person who performed the translation was qualified

to do so. Do you understand?” The respondent indicated that he understood.

4

The Immigration Judge specifically advised the respondent as follows: “I’m going to

reset your case to another date to give you time to prepare that application and submit it to

the Court. My next date is going to be January 14th, 2020 at 10:00 a.m. I’m going to

require that you submit the asylum application to the Court on or before December 6th,

2019. If the Court does not and has not received your application on or before that date,

I am going to find that you have abandoned your request for relief. So, it’s very, very

important that you submit the asylum application to the Court as well as a copy to the

Government no later than December 6th, 2019. Do you understand?” The respondent

replied, “Yes.” The Immigration Judge then suggested that he get a lawyer for his removal

proceedings to help him fill out the application. When asked again if he understood, the

respondent said, “Yes.”

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II. ANALYSIS

An alien who faces removal is entitled to a full and fair removal hearing

under both the Act and the Due Process Clause of the Fifth Amendment.

See Santos-Alvarado v. Barr, 967 F.3d 428, 439 (5th Cir. 2020) (“The

Fifth Amendment’s Due Process Clause protects individuals in removal

proceedings.” (citation omitted)); Vetcher v. Barr, 953 F.3d 361, 370 (5th

Cir. 2020) (stating that “removal proceedings must be conducted according

to standards of fundamental fairness”), petition for cert. filed (U.S. June 26,

2020) (No. 19-1437); Matter of M-A-M-, 25 I&N Dec. 474, 479 (BIA 2011)

(“Included in the rights that the Due Process Clause requires in removal

proceedings is the right to a full and fair hearing.”); see also section

240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b)(4)(B) (2020) (providing that

“the alien shall have a reasonable opportunity to examine the evidence

against the alien, to present evidence on the alien’s own behalf, and to

cross-examine witnesses presented by the Government”).

To establish that his due process rights were violated, the respondent must

prove that there was a deficiency or violation and that he was prejudiced by

it. See Okpala v. Whitaker, 908 F.3d 965, 971 (5th Cir. 2018) (“To prevail

on a claim regarding an alleged denial of due process rights, an alien must

make an initial showing of substantial prejudice.”); Matter of D-, 20 I&N

Dec. 827, 831 (BIA 1994) (per curiam) (noting that an alien has been denied

a fair hearing “only if he has been prejudiced by some deficiency so as to

deprive him of due process”); Matter of Santos, 19 I&N Dec. 105, 107 (BIA

1984) (stating that “an alien must demonstrate that he has been prejudiced by

a violation of a procedural rule or regulation before his deportation

proceeding will be invalidated”). The respondent has not shown that his

rights were violated or that he suffered prejudice in his removal proceedings.

A. Waiver of an Application for Relief From Removal

The Immigration Judge did not err in requiring the respondent to file an

application a month prior to his next scheduled hearing, rather than allowing

him to submit it at that hearing. “Immigration Judges have broad discretion

to conduct and control immigration proceedings and to admit and consider

relevant and probative evidence.” Matter of Interiano-Rosa, 25 I&N Dec.

264, 265 (BIA 2010); see also section 240(b)(1) of the Act; 8 C.F.R.

§§ 1003.36, 1240.1(c), 1240.7(a) (2020). Immigration Judges also “have

authority to set filing deadlines for applications and related documents.”

Matter of Interiano-Rosa, 25 I&N Dec. at 265; see also 8 C.F.R. § 1003.31(c)

(2020) (providing authority for Immigration Judges to “set and extend

time limits for the filing of applications and related documents”). The

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Immigration Judge gave the respondent explicit instructions regarding the

filing date and clearly warned him that his application for relief would be

deemed waived if it was not timely filed.

According to 8 C.F.R. § 1003.31(c), if an application “is not filed within

the time set by the Immigration Judge, the opportunity to file that application

. . . shall be deemed waived.” See also Choge v. Lynch, 806 F.3d 438,

440 (8th Cir. 2015) (holding that 8 C.F.R. § 1003.31(c) “clearly states

the [Immigration Judge] has the authority to deem applications waived

when submitted after the set deadlines” (citation omitted)); Matter of

Interiano-Rosa, 25 I&N Dec. at 265) (“An application or document that is

not filed within the time established by the Immigration Judge may be

deemed waived.”). The United States Court of Appeals for the Fifth Circuit,

in whose jurisdiction this case arises, found in an unpublished decision that

an Immigration Judge properly determined that an alien’s application for

relief was deemed waived because it was not presented within the set

deadline. Mathita v. Lynch, 631 F. App’x 251, 252 (5th Cir. 2016) (per

curiam).

The respondent has not explained his failure to comply with the

Immigration Judge’s application deadline or identified any difficulties he

may have encountered that prevented his compliance. If the respondent

required more than the allotted month to complete his application prior to the

December 6, 2019, deadline, he could have filed a motion requesting that the

Immigration Judge extend the deadline for submitting his application.

See 8 C.F.R. §§ 1003.23(a), 1003.31(c) (2020). See generally 8 C.F.R.

§§ 1003.29, 1240.6 (2020) (stating that an Immigration Judge may grant a

motion or application for continuance where good cause is shown). Had the

respondent established good cause for extending the application deadline,

approval of that request would likely have been appropriate. Cf. Matter of

L-A-B-R-, 27 I&N Dec. 405, 413 (A.G. 2018) (stating that “the good-cause

standard . . . requires consideration and balancing of all relevant factors in

assessing a motion for continuance to accommodate a collateral matter”).

However, the respondent made no such request.

Once the application deadline had passed and the Immigration Judge

issued her decision, the respondent could have filed a motion asking her to

reconsider the pretermission of his application and submitted a completed

application with an explanation for his untimely filing. See 8 C.F.R.

§ 1003.23(b)(1)–(2). Alternatively, he could have filed a motion to reopen,

along with his completed application, and requested that it be considered by

the Immigration Judge. See 8 C.F.R. §§ 1003.23(b)(1), (3), 1208.4(b)(3)(ii)

(2020). Had the respondent filed either type of motion and provided good

cause for missing the deadline, reconsideration or reopening by the

Immigration Judge would likely have been appropriate. However, the

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respondent made no attempt to file such a motion with a completed

application at any time after the deadline had passed.

The respondent is also required to explain on appeal why he missed the

application deadline. See 8 C.F.R. § 1003.3(b) (2020). He contends that he

“never had the opportunity to present evidence or show cause for the missed

deadline.” However, he has not provided any explanation or a good cause

justification for missing the application deadline, despite being represented

by counsel on appeal. 5 Moreover, the respondent has not submitted a motion

to remand, along with a completed application, at any time during the

pendency of his appeal. See 8 C.F.R. §§ 1003.2(b)(1), (c)(4), 1208.4(b)(4)

(2020). Nor has he alleged facts on appeal that would constitute a prima

facie claim for any form of relief. Had the respondent done so and shown

good cause for missing the deadline, a remand may have been appropriate.

The respondent was clearly warned that his application for relief could be

deemed waived if he failed to meet the filing deadline set by the Immigration

Judge. He has presented no reasonable explanation to the Immigration

Judge, or to this Board, to excuse his failure to file the application within the

month allotted by the Immigration Judge. Because the respondent did not

timely file a completed application for asylum, withholding of removal, and

protection under the Convention Against Torture as instructed, we agree with

the Immigration Judge that he waived the right to apply for that relief and

protection from removal. See Matter of R-R-, 20 I&N Dec. 547, 549 (BIA

1992) (stating that “applications for benefits under the Act are properly

denied as abandoned when the alien fails to timely file them”); 8 C.F.R.

§ 1003.31(c).

B. Full and Fair Hearing

We are unpersuaded by the respondent’s argument that his video

conference hearing, at which he was unrepresented, detained, and had a

Spanish translator, denied him of his due process right to a full and fair

hearing.

The respondent has not explained how he was prejudiced as a result of

the conditions of his hearing. He indicated that he understood the Spanish

5

The respondent has not claimed that he was prevented from timely filing an application

because he was unrepresented. He was advised of his privilege to be represented in

removal proceedings and was given a list of free and low-cost attorneys and legal service

organizations. See 8 C.F.R. § 1240.10(a)(1)–(2) (2020). The respondent hired an attorney

to represent him in bond proceedings, and there is no indication that he was deprived of

the privilege of being represented by an attorney in removal proceedings or in helping him

complete an application for relief.

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language best, so he was provided a Spanish interpreter. 6 Our review of the

transcript shows no lack of understanding or confusion on the respondent’s

part. He made no claim at any time during the hearing that he could not

understand the interpreter or the Immigration Judge and, on appeal, he has

not identified any portion of the hearing where he had such difficulty. See

Matter of K-L-, 20 I&N Dec. 654, 660 (BIA 1993) (rejecting a due process

claim where the alien showed no prejudice because he claimed to speak

English, did not request an interpreter, and “failed to specify any portion of

the hearing that he did not understand”). He was responsive to the questions

asked of him and was able to fully communicate with the Immigration Judge.

Consequently, we are not persuaded that the respondent was prejudiced as a

result of the Spanish interpretation. See Matter of D-, 20 I&N Dec. at 832

(finding there was no showing of “prejudice resulting from a deficiency” in

hearings that were conducted in English without an interpreter where the

alien indicated he spoke English, did not request an interpreter for himself,

and was able to meaningfully participate in the proceedings).

We also find no support for the respondent’s contention that his due

process rights were violated merely because the Immigration Judge

conducted his hearing by video conference. The Act and its implementing

regulations specifically provide for hearings via video conference. See

section 240(b)(2)(A)(iii) of the Act (providing that a removal “proceeding

may take place . . . through video conference”); 8 C.F.R. § 1003.25(c) (2020)

(“An Immigration may conduct hearings through video conference to the

same extent as he or she may conduct hearings in person.”). This authority

has been consistently recognized by the courts of appeals. See Vilchez

v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (recognizing that video

conference hearings are explicitly authorized by statute); Aslam v. Mukasey,

537 F.3d 110, 114 (2d Cir. 2008) (per curiam) (acknowledging that the

statutory authority accorded to Immigration Judges to conduct hearings via

video conference includes taking the testimony of witnesses); Rapheal

v. Mukasey, 533 F.3d 521, 531 (7th Cir. 2008) (stating that “Congress

specifically authorized proceedings by means of a video conference” and

rejecting the alien’s challenge to the constitutionality of the implementing

regulation).

6

An alien has a fundamental right to participate meaningfully in the removal proceedings

by having them competently interpreted into a language he or she can understand. See

Hartooni v. INS, 21 F.3d 336, 340 (9th Cir. 1994) (“The right of a person facing deportation

to participate meaningfully in the deportation proceedings by having them competently

translated into a language he or she can understand is fundamental.”); Matter of Tomas,

19 I&N Dec. 464, 465 (BIA 1987) (“The presence of a competent interpreter is important

to the fundamental fairness of a hearing if the alien cannot speak English fluently.”).

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Immigration Judges “must conduct immigration hearings in accord with

due process standards of fundamental fairness.” Bouchikhi v. Holder, 676

F.3d 173, 180 (5th Cir. 2012) (quoting Olabanji v. INS, 973 F.2d 1232, 1234

(5th Cir. 1992)). Due process requires that respondents in immigration

proceedings must be given an “opportunity to be heard at a meaningful time

and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333

(1976) (citation omitted); see also Aslam, 537 F.3d at 114 (recognizing the

applicability of the due process requirements set out by Mathews). However,

to prove a due process violation, an alien must demonstrate substantial

prejudice. See Okpala, 908 F.3d at 971.

Removal proceedings conducted by video conference do not per se

violate due process. See Vilchez, 682 F.3d at 1199 (stating that “a hearing

by video conference does not necessarily deny due process”). In fact, the

courts have generally found that such proceedings afford aliens a full and fair

hearing. See, e.g., Aslam, 537 F.3d at 115 (holding that the alien’s “due

process rights were not violated at the immigration hearing when a key

witness was permitted to provide testimony via videoconference”).

The Fifth Circuit has not yet published a decision on this issue. However,

in two unpublished decisions, the court has found the use of video conference

hearings to be fundamentally fair. See Jinquan Liu v. Holder, 566 F. App’x

333, 334 (5th Cir. 2014) (per curiam) (holding that the alien did not

demonstrate that he was prejudiced by the video conference hearing, which

was “fundamentally fair and did not result in a due process violation”); Deng

Ming Li v. Holder, 478 F. App’x 884, 887 (5th Cir. 2012) (per curiam)

(finding that the alien “failed to show that he was prejudiced by the use of

the video-conferencing format, because he did not establish that he was

precluded from meaningfully presenting his case”).

However, the potential for a video conference hearing to violate the right

to a full and fair hearing has been recognized in some circumstances. See

Vilchez, 682 F.3d at 1199 (acknowledging that “in a particular case video

conferencing may violate due process or the right to a fair hearing”); Rusu

v. INS, 296 F.3d 316, 321–24 (4th Cir. 2002) (explaining that an alien’s video

conference hearing on an asylum claim may be unfair if the fact-finder has

difficulty gauging demeanor for a credibility determination, counsel is

unable to privately confer with and advise the alien, or there are

insurmountable technological problems with the sound or video quality).

For example, a new hearing was required where the alien was unable to

review a document that was used to find her not credible and “the lack of a

fair hearing ‘actually had the potential for affecting the outcome’ of the

proceedings.” Rapheal, 533 F.3d at 531–33 (citation omitted). “Whether a

particular video-conference hearing violates due process must be determined

on a case-by-case basis, depending on the degree of interference with the full

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and fair presentation of [the alien’s] case caused by the video conference,

and on the degree of prejudice suffered by the [alien].” Vilchez, 682 F.3d at

1199–1200.

An alien who claims that removal proceedings conducted via video

conference violated due process has the burden to show that he or she was

prejudiced and denied a full and fair hearing. See id. at 1200 (holding that

the alien failed to establish that the outcome of his hearing was affected

where his claim that his credibility was compromised because of his

nervousness about testifying on video was undermined by the fact that the

Immigration Judge did not make an adverse credibility finding); Rusu, 296

F.3d at 324 (“To prevail on his contention that the video conferencing

procedures violated due process, [the alien] must show that better procedures

are likely to have made a difference in the outcome of his hearing.”). For

instance, a denial of due process has not been established where there is

insufficient evidence that the video conference equipment was unreliable or

defective. See Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir.

2007); see also Eke v. Mukasey, 512 F.3d 372, 382–83 (7th Cir. 2008)

(finding no prejudice where the alien did not explain how the video

conference format prevented the Immigration Judge from considering the

evidence in support of his claim, including his physical attributes).

The respondent has not clearly explained how having his hearing via

video conference interfered with his communication with the Immigration

Judge or otherwise prejudiced him. At the hearing, the respondent was

advised of his procedural rights. The Immigration Judge noted that he had a

lawyer for his bond hearing but told him that he also had a right to be

represented in his removal proceedings. The respondent indicated that he

understood and did not have any questions of the Immigration Judge. He

similarly acknowledged that he had a right to appeal any decision of the

Immigration Judge.

The Immigration Judge then explained the removal charges, and the

respondent indicated his understanding. Having explained each allegation in

the notice to appear, the Immigration Judge took pleadings from the

respondent. The respondent was responsive to each question, was asked

whether each allegation was true or false, and did not seek clarification or

otherwise indicate any confusion. Based on the respondent’s answers, the

Immigration Judge concluded that he was removable as charged in the notice

to appear.

There are no indicia in the transcript that the respondent and the

Immigration Judge were unable to hear or see one another. Moreover, the

respondent has not claimed that the video equipment was malfunctioning or

defective, and nothing in the transcript suggests that there were any technical

problems with the equipment. Absent technical deficiencies or other

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examples of error, we find no prejudice to the respondent. Consequently, we

conclude that the respondent has not met his burden of establishing that he

was denied a full and fair hearing as a result of the use of video conferencing.

III. CONCLUSION

After an Immigration Judge has set a firm deadline for filing an

application for relief, the respondent’s opportunity to file the application may

be deemed waived, prior to a scheduled hearing, if the deadline passes

without submission of the application and no good cause for noncompliance

has been shown. The respondent has not explained his failure to comply

with the Immigration Judge’s application deadline. Nor has he provided

good cause to justify his failure, so as to undermine the pretermission of

his application. Further, the respondent has not submitted a completed

application or alleged facts on appeal that would constitute a prima facie

claim for any form of relief. We therefore conclude that the respondent

waived the right to apply for relief from removal.

Although the respondent was detained, appeared pro se, and used a

Spanish interpreter at his video conference hearing, none of these factors,

standing alone or taken together, constitute a denial of due process. The

respondent failed to meet his burden of establishing that he was deprived of

a full and fair hearing where he has not shown that conducting the hearing

by video conference interfered with his communication with the Immigration

Judge or otherwise prejudiced him as a result of technical problems with the

video equipment. Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

NOTICE: If a respondent is subject to a final order of removal and

willfully fails or refuses to depart from the United States pursuant to the

order, to make timely application in good faith for travel or other documents

necessary to depart the United States, or to present himself or herself at the

time and place required for removal by the DHS, or conspires to or takes any

action designed to prevent or hamper the respondent’s departure pursuant to

the order of removal, the respondent shall be subject to a civil monetary

penalty of up to $813 for each day the respondent is in violation. See Section

274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).

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