Category: 8 C.F.R. 1003.2(d)

Ninth Circuit Rules that Applicant Waived Her Application By not Adhering to Deadlines

In an decision issued earlier this month, the Ninth Circuit ruled that an applicant waived her applications for a waiver of inadmissibility and Withholding of Removal by failing to timely apply. The government placed Taggar in  removal proceedings for being inadmissible under 8 U.S.C. § 1227(a)(1)(A) The government added additional charges under 8 U.S.C. § 1227(a)(1)(G)(ii) and 8 U.S.C. § 1227(a)(3)(B)(iii). She applied for Cancellation of Removal and Withholding of Removal. She failed to apply timely as instructed by the immigration judge and the government moved to pretermit the case for her late filing and the judge ordered her removal. She appealed to the Board of Immigration Appeals, which upheld the immigration judge‘s decision. 
In upholding the decisions, the Ninth Circuit ruled that the immigration judge did not abuse his discretion since he is entitled to  set deadlines under 8 C.F.R. § 1003.31. The court ruled that since she did not file within the deadline, she waived her applications and her removal order was proper.
This is a very good decision that should be applied in our circuit. I have had several cases where the government did not meet the immigration judge‘s deadlines and was still able to admit evidence and arguments. I look forward to arguing this case before our immigration judges

First Circuit Invalidates Post-Departure Bar

The First Circuit ruled last week that the post-departure rule is unconstitutional. The Post-departure bars applies to Motions to Reopen filed after the alien has been deported. Under the pertinent regulations, the motion has to be filed within 90 days of an administrative decision. The BIA has limited the alien’s ability to file such motions if he is outside of the United States under 8 CFR 1003.2(d), or what is known as the post-departure bar.  
In Santana v. Holder an alien was convicted of possession of a controlled substance. He was placed in removal proceedings as an aggravated felon. He moved to reopen his criminal proceedings. The immigration judge ordered his removal after DHS denied his request for a continuance. He moved to reopen his removal proceedings after he was removed and the immigration judge denied the motion. The BIA affirmed.
The First Circuit, in ruling that the BIA abused its discretion reasoned that the rule conflicted with statute. The court reasoned that the statute did not have a geographic requirement to file the motion. The court thus reversed the BIA’s decision  an remanded the case.
The decision raises the number of circuit ruling the same to seven, including the Eleventh Circuit.