Category: Motion to Reopen

Know Yourself Before Applying for An Immigration Benefit

I will  be discussing the second case that I discussed in my last post. This case involved a Respondent with so many identities, that the court could not find out his true identity. In Singh v. Holder, a Respondent appealed the Board of Immigration Appeals‘ order affirming the immigration judge’s decision denying his application for adjustment of status. He claimed that his due process rights were violated and that the Board erred in holding that he could not prove that he was admitted into the United States.

Singh claimed that his name in Tarsem Singh and was born on June 13, 1982, and that he entered the United States in 1995. He was also known as Simranjit Singh. He was smuggled into the United States as the daughter of a family friend. He was apprehended by ICE in 1997 and was served with for I-213. The document showed that he was born in 1978, making him 19 years old at the time. He was removed in absentia after he failed to appear for his removal hearing.  His mother procured a new birth certificate for him, with a new name and a new birthday, making him 15 years old. He filed a motion to reopen the case arguing that he did not receive proper notice of the old proceeding, which was granted. He then moved to terminate the proceedings arguing that he was a minor at the time and termination was warranted under 8 C.F.R. § 236.3. The immigration judge ordered his removal reasoning that he was nineteen when served with the first Notice to Appear. He also ruled that he was not inspected by an immigration officer, since his story could not be credited. The Board upheld the immigration judge’s decision.

The First Circuit rejected Singh’s argument that his due process rights were violated since he was given enough notice to speak to his father about his arrest and because the curt could not prove his true age. The court also ruled that Singh could not show that he was inspected since he could not provide proof of such inspection. Thus, the court upheld the Board‘s decision.

I think that this case should not have been appealed. I believe that as practitioners we should be cautious of what we appeal, due to the concern that we establish bad law. I welcome your comments and feedback.

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Second Circuit Reverses BIA’s Decision not to Reopen Removal Proceedings

This week the Second Circuit ruled that the BIA‘s decision to deny a Respondent’s Motion to Reopen removal proceedings was erroneous. The immigration judge had denied the respondent’s application for Cancellation of Removal since he allegedly did not show that he has met the ten years of continuous residence and that his removal would lead to hardship to his qualifying relatives. He appealed the decision and the BIA upheld the immigration judge. Hernandez’s Motion to Reopen his removal proceedings was also denied by the Board
The Second Circuit declined to consider the discretionary decision to deny his application for Cancellation of Removal since review is barred by statute. In reversing the decision regarding the Motion to Reopen, the court reasoned that Hernandez has shown through circumstantial evidence that he was present ten years before his hearing in 2007 and was eligible for Cancellation of Removal.
The case is Hernandez v. Holder and you can read it at this link. Happy Thanksgiving.  

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.  

Seventh Circuit Holds that Country Reports Might Not Be Credible and Should Not Be Used when Ruling on Asylum Applications

In a recently published decision, the Seventh Circuit ruled that the Board of Immigration Appeals’ reliance on country reports in asylum cases is erroneous when there are reports that contradict the information included in them. In Zheng, an alien was  ordered removed because she allegedly did not prove a fear of persecution if she were removed to the Fugian region in China. She alleged that she was forced by the Chinese government to undergo an abortion when she was a minor. She also alleged that she has two United States citizen children and that she might be persecuted if she were to return to China.
The Immigration Judge denied her application and the Board of Immigration Appeals upheld the decision. She filed for review by the Seventh Circuit. The main reason behind the BIA’s decision was a 2007 State Department report alleging that forced abortions were no longer wide-spread in the region. The seventh Circuit recited its previous decisions on the issue and reversed the decision. The court reasoned that it had ruled in one of its prior decisions that this assertion in the country report was not supported by facts since there are several reports that contradict the assertion that forced abortions are no longer wide-spread in the region. Thus, the court granted the petition for review and remanded the case to the BIA. 
This is a very interesting decision since immigration practitioners like myself have been challenging the reliability of State Department country conditions reports on several grounds. One of these arguments is the fact that the information in the reports cannot be authenticated and is sometimes highly unreliable and politicized. This is a win for the little guy.

BIA Rules that Time and Number Limitations do Not Apply to Motions to Reopen to Apply for Asylum

In a decision issued last week, the Board of Immigration Appeals ruled that an alien trying to reopen removal proceedings to apply for asylum does not have to first rescind the removal order.  In Matter of J-G, 26 I&N Dec. 161 (BIA 2013), an alien moved several times to reopen his removal proceedings arguing that his in absentia order should be rescinded because of changed country conditions. The Immigration Judge had denied all of these motions arguing that they were time and number barred. In reversing the immigration judge’s decision, the BIA reasoned that Congress, when promulgating the rules for reopening removal proceedings did not apply these rules to motions to reopen based on asylum. Thus, the Board ruled that a movant for a motion to reopen in absentia proceedings based on a claim for asylum does not have to rescind his removal order to reopen removal proceedings and is not bound to the time and number limitations. 
I agree with the Board’s decision since it allows one of the most vulnerable immigrant groups apply for relief without going through any hurdles. However, even if  removal proceedings get reopened, the alien still has the burden to prove that he is eligible for relief.