In re Alcantara-Perez, Interim Decision No. 3526.
| Decision Date | 23 February 2006 |
| Docket Number | File A74 105 213.,Interim Decision No. 3526. |
| Parties | In re Fabricio ALCANTARA-PEREZ, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
This case was last before us on April 13, 2005, when we dismissed an appeal by the Department of Homeland Security ("DHS") from a decision of an Immigration Judge dated December 1, 2003, finding that the respondent established eligibility for adjustment of status. We remanded the record for the appropriate background and security checks and for the entry of an order by the Immigration Judge.
On remand, the background checks revealed that during the pendency of the appeal, the respondent had been convicted of a domestic violence crime against his wife, who was the petitioner of an immediate relative visa petition filed on his behalf, and that an active order of protection restraining him from having any contact with his wife was in effect. Presented with this new evidence, the Immigration Judge certified the case to us for guidance on how to proceed.1 The record will be remanded to the Immigration Judge.
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, 70 Fed. Reg. 4743, 4753 (Jan. 31, 2005) (). 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 ().
When background checks are required, 8 C.F.R. § 1003.1(d)(6)(ii) provides that the Board will determine the best means to facilitate the final disposition of the case, either by issuing an order remanding the case with instructions to allow the DHS to complete the appropriate background and security checks, or by providing notice to both parties that the case is being placed on hold until the checks have been completed and the results have been reported to the Board. For cases that were pending at the Board before the regulation took effect on April 1, 2005, the regulations contemplate that after consideration of the issues on appeal, the Board will remand to the Immigration Judge those cases in which the alien is found eligible for relief from removal, with instructions to allow the DHS to complete the background checks and report the results to the Immigration Judge. 70 Fed. Reg. at 4748 (Supplementary Information).
According to 8 C.F.R. § 1003.47(h), in any case remanded by the Board pursuant to 8 C.F.R. § 1003.1(d)(6), the Immigration Judge is required to consider the results of the background checks. The regulation further provides that "[i]f new information is presented, the immigration judge may hold a further hearing if necessary to consider any legal or factual issues, including issues relating to credibility, if relevant" and "shall then enter an order granting or denying the immigration relief sought." 8 C.F.R. § 1003.47(h). After the Immigration Judge enters an order granting or denying relief based on the new evidence, the parties have the right to appeal the decision for the Board's review. See 70 Fed. Reg. at 4748 (Supplementary Information).
In the instant case, our April 13, 2005, order was not a final decision because the appropriate background checks had not been conducted. 8 C.F.R. § 1003.1(d)(6). On remand, the background checks revealed new information indicating that the respondent had been convicted of another domestic violence offense against his wife and that...
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