BOLIVAR-BOLIVAR

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Cite as 29 I&N Dec. 548 (BIA 2026) 	Interim Decision #4180
Matter of John BOLIVAR-BOLIVAR, Respondent
Decided April 10, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where the respondent is charged with being in the United States without having been
admitted or paroled, neither the alien nor the Department of Homeland Security appears at
the hearing, and the record contains evidence of alienage, the Immigration Judge errs in
terminating removal proceedings rather than proceeding with an in absentia hearing.
FOR THE RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Kaleigh Adcox, Assistant
Chief Counsel
BEFORE: 	Board Panel: 	MALPHRUS, Chief Appellate Immigration Judge; RADICS,
Deputy Chief Appellate Immigration Judge; MAHTABFAR, Appellate Immigration
Judge.
MALPHRUS, Chief Appellate Immigration Judge:
On February 1, 2024, the Immigration Judge terminated these removal
proceedings 	without 	prejudice 	due 	to 	the 	Department 	of 	Homeland
Security’s (“DHS”) nonappearance. 	DHS has appealed from that decision,
and the respondent has not responded to the appeal. 	We will sustain the
appeal, reinstate proceedings, and remand the record to the Immigration
Court for further proceedings.
I. PROCEDURAL HISTORY
On November 14, 2022, DHS served the respondent, with a notice to
appear, charging him with inadmissibility under section 212(a)(6)(A)(i) of
the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i)
(2018), for being present in the United States without being admitted or
paroled. 	The notice to appear included the date, time, and place of the
respondent’s initial hearing as February 1, 2024, at 8:30 a.m. at the Atlanta
Immigration Court. 	DHS filed the notice to appear with the Immigration
Court, thereby initiating these proceedings. 	8 C.F.R. § 1003.14(a) (2026).
On 	January 	25, 	2024, 	DHS 	filed 	a 	Form 	I-213, 	Record 	of
Deportable/Inadmissible Alien with the Immigration Court as evidence of
the respondent’s alienage. At the scheduled hearing on February 1, 2024, of
which both parties had notice, neither the respondent nor DHS appeared. The

Cite as 29 I&N Dec. 548 (BIA 2026) 	Interim Decision #4180
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Immigration Judge terminated proceedings based on DHS’ nonappearance,
finding that DHS did not submit evidence of removability prior to the hearing
and/or a motion on how to proceed.
II. ANALYSIS
When a respondent fails to appear before the Immigration Court at the
scheduled hearing, an Immigration Judge shall order the respondent removed
in absentia if DHS establishes by clear, unequivocal, and convincing
evidence both that the respondent was provided with proper notice of the
missed hearing and that he or she is removable. 	8 C.F.R. § 1003.26(c)
(2026); accord INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A) (2024). We
recently held in Matter of Tepec-Garcia, 29 I&N Dec. 371, 375 (BIA 2025),
that “where neither the respondent nor DHS appears at the hearing and DHS
does not present any evidence of removability in advance of the hearing, the
Immigration 	Judge 	does 	not 	err 	in 	terminating 	proceedings 	without
prejudice.”
We agree with DHS that the Immigration Judge erred in terminating these
proceedings. Both the respondent and DHS failed to appear at the scheduled
hearing. However, unlike in Matter of Tepec-Garcia, the record reflects that
DHS submitted evidence of the respondent’s alienage prior to the hearing.
Specifically, 	DHS 	submitted 	a 	Form 	I-213, 	Record 	of
Deportable/Inadmissible Alien, on January 	25, 2024.1 	See Matter of
Mariscal-Hernandez, 28 I&N Dec. 666, 668 (BIA 2022) (holding that a
Form I-213 is “probative of [a] respondent’s alienage”). 	The Immigration
Judge should have reviewed whether this document was sufficient to
establish alienage and thereby shift the burden of proof to the respondent to
prove he is not inadmissible as charged. 	See Matter of Mercado-Martinez,
29 I&N Dec. 529, 530–31 (BIA 2026) (noting that a Form I-213 is
presumptively reliable); 8 C.F.R. § 1240.8(c) (discussing the shifting burden
of proof).
1 	Although not relevant here, alienage may also be established through record evidence
other than a Form I-213, such as an affirmatively filed Form I-589, Application for Asylum
and for Withholding of Removal, which contains a respondent’s admission of alienage.
See 8 C.F.R. § 1208.3(c)(1) (2026) (stating that the information provided in asylum
applications may be used as a basis for the initiation of removal proceedings or to satisfy
any burden of proof in removal proceedings); 8 C.F.R. § 1240.11(e) (2026) (stating that
asylum 	applications 	filed in 	removal 	proceedings, 	also referred to 	as 	defensive
applications, “shall not be held to constitute a concession of alienage”); see also Matter of
Carrillo, 17 I&N Dec. 30, 32 (BIA 1979) (holding that an alien’s admission of alienage is
sufficient to shift the burden to the respondent to justify his presence in the United States).

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While the Immigration Judge justified termination by also noting that
DHS did not file a motion informing the Immigration Judge how it wanted
to proceed, the respondent’s failure to appear triggered section 240(b)(5)(A)
of the INA, 8 U.S.C. § 1229a(b)(5)(A), and 8 C.F.R. § 1003.26, requiring the
Immigration Judge to conduct an in absentia hearing and determine whether
notice and removability had been established. 	Where the respondent is
charged with being in the United States without having been admitted or
paroled, neither the alien nor DHS appears at the hearing, and the record
contains evidence of alienage, the Immigration Judge errs in terminating
removal proceedings rather than proceeding with an in absentia hearing.
Because the record here contained evidence of the respondent’s alienage, the
Immigration Judge could have proceeded with an in absentia hearing and
therefore erred in terminating proceedings without prejudice. 	See INA
§ 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A).
III. CONCLUSION
Based on the foregoing, we conclude that the Immigration Judge erred in
terminating proceedings without prejudice based on DHS’ nonappearance.
We 	remand 	the 	record 	to 	the 	Immigration 	Judge 	to 	conduct 	further
proceedings consistent with this decision, including to address whether the
respondent received proper notice and whether removability was established.
See INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A).
ORDER: DHS’ appeal is sustained.
FURTHER ORDER: 	The Immigration Judge’s February 1, 2024,
decision is vacated, removal proceedings are reinstated, and the record is
remanded to the Immigration Judge for further proceedings and the issuance
of a new decision.