When the BIA remands a case “for further proceedings,” what does that mean? A remand sometimes says it is for a very specific purpose. But if the Board generally remands for “further proceedings,” the open-ended remand isn’t limited and should entitle the immigrant to at least have a hearing and to apply for any relief she might be eligible for.
A few weeks ago, another attorney in my office received a BIA decision granting the government’s appeal and remanding the case “for further proceedings.” So, while our client had won the right to stay here, the government’s appeal meant his victory was overturned.
But the Judge’s reaction on remand was surprising. Instead of conduct “further proceedings,” the IJ granted voluntary departure and mailed us the decision. So now the client has to leave without another hearing. We’re planning to appeal. But the IJ’s mistake raises an important question: what does “further proceedings” mean?
Thankfully, the BIA has already answered this question.
An unpublished decision from December, 2011 says the IJ’s approach was incorrect. In In re Cruz, the Board
“when we remand a case to an Immigration Judge, the remand is effective for the stated purpose and for consideration of other appropriate matters, unless the Board qualifies or limits the remand for a specific purpose … [I]n Matter of M-D-, 24 I&N Dec. 138 (BIA 2007) … we held that when a case is remanded for the specific and limited purpose of conducting background checks, the Immigration Judge reacquires jurisdiction over the proceedings and may consider additional evidence if it is material, was not previously available, and could not have been discovered or presented at the former hearing.”
Can you interpret what this appeal decision may mean:
"The appeal will be sustained and the record will be remanded for further proceedings"
And then later:
"ORDER: The Director’S March xx, 2012, decision is vacated.
FURTHER ORDER: The app1icant’s request for a waiver under section 212(d)(3) will be
Does this mean the waiver will come, or I have to re-apply?
I would not be able to to say for sure without reading the decision. It sounds like your appeal was of a denied I-130 visa petition. But the reference to the 212(d)(3) waiver (which is a nonimmigrant waiver of inadmissibility) has me confused. I would have to know the nature of the appeal and actually read the decision. But congratulations on the win!