OROZCO BECERRA & OROZCO BECERRA

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Cite as 29 I&N Dec. 600 (BIA 2026) 	Interim Decision #4189
Matter of Angel Damian OROZCO BECERRA, Respondent
Matter of Neythan OROZCO BECERRA, Respondent
Decided April 29, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
When respondents, including minor respondents, fail to appear for their hearing and the
Department of Homeland Security has established that they received proper notice of the
hearing and are removable as charged, the Immigration Judge lacks authority to
administratively close removal proceedings and must proceed in absentia under section
240(b)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(A) (2018).
FOR THE RESPONDENTS: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Ihsan U. Ahmed, Assistant
Chief Counsel
BEFORE: 	Board 	Panel: 	MALPHRUS, 	Chief 	Appellate 	Immigration 	Judge;
HUNSUCKER and GEMOETS, Appellate Immigration Judges.
MALPHRUS, Chief Appellate Immigration Judge:
The 	Department 	of 	Homeland 	Security 	(“DHS”) 	has 	filed 	an
interlocutory appeal of the Immigration Judge’s August 22, 2025, decision
administratively 	closing 	the 	respondents’ 	removal 	proceedings. 	The
respondents have not filed a response in opposition to the appeal.1 The Board
does not usually entertain interlocutory appeals. See Matter of M-D-, 24 I&N
Dec. 138, 139 (BIA 2007). However, we will exercise jurisdiction over this
interlocutory appeal “to insure proper use of the administrative closing
procedure.” Matter of Amico, 19 I&N Dec. 652, 653 (BIA 1988). The appeal
will be sustained, these removal proceedings will be reinstated, and the
record will be remanded.
I. FACTUAL AND PROCEDURAL HISTORY
The respondents are two minors who are natives and citizens of Mexico.
They applied for admission at a port of entry with their adult mother and an
adult male on June 22, 2023. An immigration officer personally served the
1 	After DHS filed its appeal, we requested supplemental briefing from the parties. DHS
filed a supplemental brief. The respondents did not file a brief or otherwise respond.

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respondents’ mother with notices to appear charging her and the respondents
with inadmissibility under section 212(a)(7)(A)(i)(I) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2018), because they
lacked 	valid 	entry 	documents. 	The 	notices 	to 	appear 	informed 	the
respondents and the accompanying adults that they were required to appear
for an initial removal hearing before an Immigration Judge in San Francisco,
California, on October 30, 2024, at 9:00 a.m. 	They did not appear for the
scheduled hearing, and the Immigration Judge reset the hearing for April 2,
2025. 	A written hearing notice was mailed to the respondents’ last known
address as provided in their notices to appear.
The respondents and the accompanying adults did not appear for the reset
hearing. 	At the April 2, 2025, hearing, the Immigration Judge determined
that the evidence submitted by DHS was insufficient to establish alienage for
the respondents and the accompanying adults. 	The Immigration Judge
requested DHS submit additional evidence to establish their alienage and
scheduled another hearing for August 21, 2025. A hearing notice was again
mailed to the respondents’ last known address. 	DHS submitted birth
certificates for the respondents and the accompanying adults as well as
identity cards for the accompanying adults to establish their alienage. 	The
respondents and the accompanying adults did not appear for the August 21,
2025, hearing, and DHS moved for the Immigration Judge to enter in
absentia removal orders. 	The Immigration Judge ordered the respondents’
mother and the other accompanying adult removed in absentia. 	However,
the Immigration Judge declined to order the minor respondents removed in
absentia, concluding that they could not be held responsible for their
mother’s failure to appear and that entering an in absentia removal order
would violate their due process rights. 	Instead, the Immigration Judge
administratively closed the minor respondents’ removal proceedings over
DHS’ objection. The present appeal followed.
II. DISCUSSION
Section 240(b)(5) of the INA, 8 U.S.C. § 1229a(b)(5) (2018), provides
that any alien who does not appear for a removal hearing “shall be ordered
removed in absentia” if DHS establishes that proper written notice of the
hearing was provided and that the alien is removable. 	The statute thus
imposes a mandatory duty on Immigration Judges to issue an in absentia
order against an alien who does not appear for his or her removal hearing if
the statutory requirements are met. See Bufkin v. Collins, 604 U.S. 369, 379
(2025) 	(“It 	is 	undisputed 	that 	the 	word 	‘shall’ 	imposes 	a 	mandatory
command.”); see also Valencia-Fragoso v. INS, 321 F.3d 1204, 1206 (9th
Cir. 2003) (“It is well settled that ‘[i]f an alien is provided proper written

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notice of a removal hearing and fails to attend, the immigration judge is
required to enter an in absentia order of removal.’” (citation omitted)). 	In
other words, when the evidentiary requirements for establishing proper
notice and removability are met, an Immigration Judge has no discretion to
do anything other than order a non-appearing respondent removed in
absentia. Matter of Tepec-Garcia, 29 I&N Dec. 371, 373 (BIA 2025).
By 	administratively 	closing 	the 	respondents’ 	removal 	proceedings
instead of ordering them removed, the Immigration Judge improperly applied
a discretionary regulation in a manner that directly conflicts with Congress’
express mandatory command. 	The applicable regulation provides that an
“[I]mmigration [J]udge may, in the exercise of discretion, administratively
close a case upon the motion of a party” after considering the “totality of the
circumstances.” 	8 	C.F.R. 	§ 	1003.18(c)(1), 	(3) 	(2026). 	However,
Immigration Judges cannot exercise this discretionary authority which is
provided by regulation when doing so conflicts with a mandatory statutory
command.2 See Sec’y of Lab. v. W. Fuels-Utah Inc., 900 F.2d 318, 320 (D.C.
Cir. 1990) (“[A] regulation must be interpreted so as to harmonize with and
further and not to conflict with the objective of the statute it implements.”
(citation omitted)); cf. Manhattan Gen. Equip. Co. v. Comm’r of Internal
Revenue, 297 U.S. 129, 134 (1936) (holding that a regulation that does not
“carry into effect the will of Congress as expressed by the statute . . . but
operates to create a rule out of harmony with the statute, is a mere nullity”).
Here, the Immigration Judge’s application of the administrative closure
regulation is inconsistent with the clear statutory mandate. The Immigration
Judge was required by statute to order the respondents removed in absentia
when 	they 	failed 	to 	appear 	and 	DHS 	established 	proper 	notice 	and
removability. 	The Immigration Judge had no authority to supplant the
specific, unambiguous statutory command enacted by Congress with the
more general discretionary regulation promulgated by the agency.3 See Duke
2 	If the administrative closure regulations did purport to apply in the in absentia context,
we would be required to evaluate the validity of applying the regulation in that manner
based on the clear conflict with the in absentia statute that would result. See Matter of
Singh, 24 I&N Dec. 331, 334 (BIA 2007) (considering whether there was a “conflict
between the statute and the implementing regulation”); Matter of Gonzalez-Lopez, 20 I&N
Dec. 644, 645 (BIA 1993) (expressly deciding not to apply a then-extant regulation when
it conflicted with a more recently enacted statute).
3 	Even when the decision to proceed in absentia was discretionary under a prior statute,
we held that administrative closure was inappropriate when it allowed a respondent to
avoid being ordered deported “by simply failing to appear.” Matter of Amico, 19 I&N Dec.
at 654 (applying former INA § 242(b), 8 U.S.C. § 1252(b) (1982)).

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v. United States, 255 F.2d 721, 724 (9th Cir. 1958) (“If there is any conflict
between the statute and the regulation, the former prevails.”); Texas v. EPA,
726 F.3d 180, 195 (D.C. Cir. 2013) (“‘[A] valid statute always prevails over
a conflicting regulation,’ . . . and a regulation can never ‘trump the plain
meaning of a statute[.]’” (citations omitted)).
Moreover, the Immigration Judge’s concern that it would violate the
respondents’ due process rights to order them removed in absentia based on
their mother’s failure to bring them to their removal hearing was misplaced.
The Board has jurisdiction over constitutional claims, including due process
arguments. Matter of H-A-A-V-, 29 I&N Dec. 233, 237 n.6 (BIA 2025). We
have 	expressly 	rejected 	the 	argument 	that 	it 	would 	violate 	a 	minor
respondent’s due process rights to penalize her for failing to appear when a
responsible adult received proper notice of the hearing. 	Matter of Gomez-
Gomez, 23 I&N Dec. 522, 528 (BIA 2002). In rejecting that argument, we
observed that Congress did not include an exception for minors in the in
absentia statute. 	Id.; see also Louisville & Nashville R.R. Co. v. Mottley,
219 U.S. 467, 479 (1911) (explaining that courts lack authority to “add [a
statutory] exception based on equitable grounds when Congress forebore to
make such an exception”); Lopez v. Garland, 116 F.4th 1032, 1043 (9th Cir.
2024) (“[W]hen the language is plain, we have no right to insert words and
phrases, so as to incorporate in the statute a new and distinct provision.”
(quoting United States v. Temple, 105 U.S. 97, 99 (1881))). Given the lack
of any statutory exception for minors in the in absentia statute, we held that
“an adult relative who receives notice on behalf of a minor alien bears the
responsibility to assure that the minor appears for the hearing, as required.”
Matter of Gomez-Gomez, 23 I&N Dec. at 528; see also Flores-Chavez v.
Ashcroft, 362 F.3d 1150, 1157 (9th Cir. 2004) (“[A] legally responsible adult
must be charged with ensuring the juvenile’s appearance at the hearing.”).
The Fifth Amendment entitles aliens in removal proceedings “to notice
and opportunity to be heard ‘appropriate to the nature of the case.’” Trump
v. J.G.G., 604 U.S. 670, 673 (2025) (quoting Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 313 (1950)). Here, the record shows that
the respondents received proper notice of their removal hearings and had
several opportunities to appear for their hearings through service of the
notices to appear and hearing notices on their mother. 	Their mother was
responsible for ensuring their appearance, and they did not appear despite
receiving proper notice. 	Additionally, the statutory scheme governing in
absentia proceedings ensures that the respondents may avail themselves of
the procedural protections provided by section 240(b)(5)(C) of the INA, 8
U.S.C. § 1229a(b)(5)(C), which allows them to seek reopening and rescission
of any in absentia removal orders entered against them. Given the notice and

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opportunity to appear that has already been provided, as well as the statutory
remedy available to seek rescission of an in absentia removal order, entry of
in absentia removal orders against the respondents would not violate their
due process rights.
III. CONCLUSION
When respondents, including minor respondents, fail to appear for their
hearing and DHS has established that they received proper notice of the
hearing and are removable as charged, the Immigration Judge lacks authority
to administratively close removal proceedings and must proceed in absentia
under section 240(b)(5)(A) of the INA, 8 U.S.C. § 1229a(b)(5)(A). Because
the Immigration Judge erred by not entering in absentia removal orders under
these circumstances, we will reinstate these removal proceedings and remand
the record for further proceedings consistent with this opinion.
ORDER: The appeal is sustained.
FURTHER ORDER: These removal proceedings are reinstated, and
the record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.