Case Overview
In Matter of Tepec-Garcia, the Board of Immigration Appeals held that an Immigration Judge does not err in terminating removal proceedings without prejudice. This occurs when neither the respondents nor the Department of Homeland Security (DHS) appear at the scheduled hearing. Additionally, DHS must fail to submit evidence of removability in advance. The BIA dismissed DHS’s appeal and confirmed that DHS retains the burden of establishing alienage and removability, even in in absentia contexts.
Key Facts about Matter of Tepec-Garcia
The respondents were served with individual Notices to Appear charging them with inadmissibility. They were charged under INA § 212(a)(6)(A)(i) for being present in the United States without admission or parole. DHS issued the notices, specifying the date, time, and location of the initial hearing. It also filed them with the Immigration Court to initiate proceedings. Both parties received notice of the April 3, 2024, hearing. Neither the respondents nor DHS appeared at the hearing, and DHS did not submit any evidence of removability, such as a Form I-213, prior to the hearing. DHS later asserted it had filed a notice of nonappearance at the court’s window per local agreement. However, no such notice or attached evidence appears in the record.
Procedural History in Matter of Tepec-Garcia
DHS served and filed the Notices to Appear, commencing removal proceedings. The Immigration Judge scheduled an initial hearing for April 3, 2024. When neither party appeared and no evidence of removability was provided, the Immigration Judge terminated the proceedings without prejudice on the same date. The judge found DHS had not met its burden. DHS appealed to the BIA, arguing the Immigration Judge erred by not continuing the case. They sought for DHS to appear and present evidence. The respondents did not respond to the appeal. The BIA dismissed the appeal on December 19, 2025.
Legal Issues Presented
The primary legal question was whether an Immigration Judge must continue a removal hearing to allow DHS a second opportunity to appear. This concern arises when (1) neither the respondents (2) nor DHS appears at the scheduled hearing, and (3) DHS has not submitted evidence of alienage in advance. Relevant statutes and regulations included INA § 240(b)(5)(A) (governing in absentia removal orders), 8 C.F.R. § 1003.26 (requirements for in absentia hearings), 8 C.F.R. § 1240.10 (procedures for hearings and pleadings), and 8 C.F.R. § 1240.8(c) (DHS’s burden to establish alienage in inadmissibility cases).
Decision Summary
The BIA dismissed DHS’s appeal and upheld the Immigration Judge’s termination of proceedings without prejudice. The holding clarified that termination is appropriate under these circumstances because DHS bears the burden of establishing removability. As a result, they failed to do so. No in absentia removal order was issued, and DHS remains free to file new Notices to Appear or submit evidence in advance in future proceedings.
Legal Reasoning and Analysis of Matter of Tepec-Garcia
The BIA began by affirming DHS’s general burden to establish alienage in inadmissibility cases under 8 C.F.R. § 1240.8(c). They noted that evidence like a Form I-213 is probative but was not provided here. The BIA rejected DHS’s reliance on 8 C.F.R. § 1240.10(d), which requires assigning DHS counsel when removability is contested. This provision applies only when respondents appear, receive advisals, and enter pleadings contesting charges—steps impossible when respondents are absent.
Instead, the BIA applied INA § 240(b)(5)(A) and 8 C.F.R. § 1003.26, which mandate proceeding to an in absentia hearing if notice is proper. DHS must prove removability by clear, unequivocal, and convincing evidence. In this case, with no evidence submitted, the Immigration Judge could not issue an in absentia order. The judge properly terminated proceedings. The BIA emphasized the distinct scenarios: contested removability triggers 8 C.F.R. § 1240.10, while respondent nonappearance triggers in absentia procedures under INA § 240(b)(5)(A).
The decision interpreted the regulations conjunctively. It noted no cross-reference between 8 C.F.R. § 1240.10 and § 1003.26 requires continuances for DHS nonappearance. It cited precedents like Matter of Mariscal-Hernandez, 28 I&N Dec. 666 (BIA 2022), for Form I-213’s role in proving alienage. Finally, the BIA considered judicial efficiency. It rejected mandatory continuances, as they would overburden the system without advancing expeditious adjudication.
Practical Implications
For foreign nationals in removal proceedings, this decision underscores the potential for termination without prejudice. This applies if DHS fails to meet its evidentiary burden. It allows respondents to avoid in absentia orders but potentially face refiled charges. Petitioners and employers should note that while termination halts current proceedings, it does not resolve underlying inadmissibility. Therefore, vigilance for new Notices to Appear is necessary. Documentation strategies should include preparing for hearings with evidence of lawful status or admission. DHS may refile with supporting materials like Form I-213. Risk mitigation involves confirming service of notices and coordinating with counsel to ensure appearance, avoiding scenarios where nonappearance leads to procedural dismissals or refilings that prolong uncertainty.
Policy and Compliance Considerations
This ruling aligns with established DHS burdens in removal proceedings but clarifies no automatic second chance for DHS nonappearance. It promotes accountability in evidence submission. The ruling signals stricter adherence to in absentia requirements, potentially increasing scrutiny on DHS’s pre-hearing filings in high-volume courts. Future adjudications may see more terminations in similar no-show cases, encouraging DHS to submit evidence proactively. No changes to evidentiary standards are introduced. However, the decision reinforces compliance with notice and burden provisions under INA § 240 and related regulations. It does this without departing from prior policy.
Key Takeaways
- Termination without prejudice is appropriate when neither party appears and DHS fails to provide removability evidence pre-hearing.
- DHS bears the initial burden to establish alienage in inadmissibility cases, typically via Form I-213 or similar documentation.
- 8 C.F.R. § 1240.10 applies only to contested proceedings with respondent appearance, not in absentia scenarios.
- INA § 240(b)(5)(A) mandates in absentia hearings only if DHS meets its evidentiary threshold.
- Judicial efficiency favors avoiding mandatory continuances for DHS nonappearance.
- DHS may refile Notices to Appear post-termination, requiring ongoing compliance monitoring.
- Respondents benefit from procedural protections but face potential refilings without resolution of underlying charges.
