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.