In Matter of Ramiro Sanchez-Herbert, the Board held that if the respondent received proper notice of the hearing, it should be considered inappropriate to terminate the pending proceedings, even if he or she has left the United States prior to the said hearing. The Immigration Judge can still retain jurisdiction over the pending proceedings even while Respondent is abroad. The Immigration Judge should still proceed with an in absentia hearing.
It is the purpose of in absentia hearings to determine whether the DHS can establish that respondent was able to receive proper notice and is removable as charged. The Immigration Judge will then be able to issue an order of removal once the DHS is able to meet its burden. However, proceedings should be terminated if the DHS fails to meet its burden.
By allowing a respondent who leaves the country while in proceedings to deprive the Immigration Judge of jurisdiction over a case, he or she can eventually avoid the consequences of a formal order of removal, even with proper notice of the hearing.
The DHS should be given the opportunity to proceed with in absentia proceedings to meet and establish removability based on the facts and evidence at hand. That and the establishment of proper notice and service should be enough to give the Immigration Judge a chance to issue an order of removal.
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