Board of Immigration Appeals' Post-Departure Bar Rule

I am filing a response to the Ninth Circuit's Order to Show Cause (OSC) issued against one of our Petitions For Review. In doing the legal research about the issues, I ran across the BIA's Post-Departure Bar Rule and their precedent decision in Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008) which interprets 8 C.F.R. § 1003.2(d) and 8 C.F.R. § 1003.23(b)(1) as divesting the agency of jurisdiction once the alien is outside of the United States. This holds true even if the alien is forcibly removed by the government itself.

The application of this regulation in such a situation creates a topsy-turvy Alice-in-Wonderland world where you can have a statutory right to file either an appeal (8 C.F.R. § 1003.23(b)(1)) or an motion to reopen (8 C.F.R. § 1003.2(d)) and before the BIA has to rule on the appeal or motion, they can deny a stay of removal (interlocutory decision) and then the government can forcibly remove the alien, thus stripping the BIA of jurisdiction to rule on the merits of the appeal or motion.

Incredibly, this self-serving application of an agency promulgated rule has created a circuit split in the federal appellate courts.

Our client has filed a motion to reopen based upon the ineffectiveness of his prior counsel. Under Compean II he has a legal right to do so. However, he is presently in ICE custody and the BIA denied our Emergency Motion for Stay. Thus, necessitating the Petition for Review to the Ninth Circuit.

However, there is no "Final Order" for the court to review under INA § 242(a)(1), hence the OSC from the Court.

My argument is twofold:

First, under INA § 242(a)(2)(D), the court has appellate jurisdiction to review questions of law or constitutional matter. In this case, the BIA's Post-Departure Bar Rule violates my client's procedural due process right to have a decision rendered on his lawfully raised motion to reopen.

Second, under the jurisdiction stripping Congressional REAL ID Act of 2005, which eliminated habeas review from the district courts, the only way habeas review could be eliminated is if an "adequate and effective" substitute were available, otherwise the Suspension Clause of the Constitution would be violated. Therefore, a claim that could have been raised under traditional habeas review can be raised under a Petition for Review to the appellate court.

Happy Ending

I love these stories, ones that have a happy ending.

In July of 2008 - I receive a frantic phone call from someone telling me about an ICE raid at his parent's home early in the morning. ICE Officers were executing an arrest warrant on his sister, a longtime LPR, who had been order removed, in absentia, in 2003. To make matters even worse, she was considered an aggravated felon, under immigration law, for a theft conviction in Alabama she plead to in 1995.

This is the posture that the case was presented to our office - (1) Final Order of Deportation; (2) Alien in ICE custody; and (3) No possibility of release as an aggravated felon.

The brother paid our retainer fee and we went to work.

First, we would need to get her deportation proceeding reopened - starting investigating the attorney she hired in Alabama. He was disbarred for cocaine and alcohol addition (plus stealing money from his clients for his habits). Filed a motion to reopen and rescind the removal order - which stayed the deportation until the Immigration Court ruled on the motion.

Another of the brothers, who still lived in Alabama, hired a local criminal defense attorney to reduce the criminal sanction under the threshold for an aggravated felony. Our client had been caught shoplifting a $25 item, plead to a class three misdemeanor and was sentenced to a one-year suspended sentence. She never spent a day in jail. However, the one-year sentence (even suspended) was the magic number for immigration to consider this an aggravated felony. In California, she would have been convicted of a Petty Theft, but this was Alabama. Under a Writ of Coram Nobis - the DA and the local Judge agreed to reduce the suspended sentence, nunc pro tunc, to 11 months and now our client was eligible to be released from ICE custody.

The Immigration Court in Atlanta granted our motion to reopen and rescind the removal order based on the ineffective assistance of counsel by the disbarred former attorney. We moved to change venue to San Francisco Immigration Court.

At the Individual Merits Hearing, we submitted the I-191, seeking relief under INA § 212(c) waiver, which the IJ granted.

Next we filed an N-400 Naturalization Application, which was recently granted and next Wednesday she will be sworn in as a U.S. citizen.

We took a criminal alien, under a final order of deportation, found to be an aggravated felon, and turned her into a U.S. citizen.

I love these stories.

New Ninth Circuit Petition - With a Twist

We filed a Petition for Review in the Ninth Circuit Court of Appeals for a client who was facing imminent deportation based upon a final removal order in 2005.

The IJ's denial of his mother's asylum claim was finally exhausted in April of 2009, when the Ninth Circuit denied their direct case appeal.

Our office filed a Motion to Reopen with the Board of Immigration Appeals, under Compean II, Matter of Compean, 225 I&N Dec. 1 (A.G. 2009). and since one of our clients was in immigration custody, we also filed an emergency motion for a stay.

Our client was subsequently moved to Tacoma, Washington, where ICE was staging Asia Deportees for a government charter flight back to Asia which left on August 31, 2010. See the ICE Press Release on this charter flight.

The BIA faxed their decision denying our motion to stay late on August 30, 2010, leaving very little time for us to act. We filed with the Ninth Circuit for an emergency stay that evening, and now I have to file our Memorandum of Points and Authorities on why the stay should be made permanent.

I have struggled with the legal issues presented in this case and I have argued that because the BIA has decided in Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008) that they lose jurisdiction over a motion to reopen if the alien has departed from the U.S., the so called "departure bar rule" under 8 C.F.R. § 1003.2(d), they therefore, constructively denied our motion to reopen and thus, the circuit court has jurisdiction over a final agency decision.

I also argued that this constructive denial of our client's motion to reopen, by virtue of denying his motion for stay, the BIA has violated his Fifth Amendment Right to Due Process of Law to have his motion properly adjudicated under Compean II

Let you know how this flies with the Law & Motion Department.

Win in One of Our Cases Where Aslyee Was Held Inadmissible For Providing "Material Support" to a FTO Under INA § 212(a)(3)(B)

Our client was held inadmissible under sub-section 212(a)(3)(B) of the INA; 8 U.S.C. §1182(a)(3)(B), for providing “material support,” in the sole form of medicines, to a foreign terrorist organization (“FTO”), specifically the New Peoples Army (“NPA”) of the Philippines.

USCIS had used the declaration she previously provided in support of her I-589 Asylum Application. Years ago, she was granted asylee status based upon her fear of persecution by either the paramilitary troops fighting the NPA, or by the NPA guerillas as she was caught in the middle of this conflict.

At the time she filed her I-485 adjustment application, USCIS denied her application on the basis that she was inadmissible under the material support clause. We filed a motion to reopen / reconsider based principally upon the Geneva Conventions, which hold that providing medicines, even to foreign combatants, is explicitly protected and she was only providing medicines to the affected civilian populations, (of which the government concluded it also collaterally aided the NPA).

Our motion languished for several years without any decision on the part of USCIS, until we submitted recently a status update request based upon the recent SCOTUS decision in Holder v. Humanitarian Law Project, which explicitly held that providing medicine did not fall within the criminal statute and was a protected activity. Therefore, we argued that it could not form a basis for inadmissiblity.

Yesterday, we received the notice from USCIS that they had reopened the application and had granted her adjustment of status. Big win, major win for our team.