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New hope for those with a deportation or Removal Order

By Attys. Robert Reeves & Eric R. Welsh

When a person is ordered deported or removed from the United States by an Immigration Judge, that person generally cannot become a lawful permanent resident unless their Immigration Court case is reopened. An Immigration Court case can only be reopened under limited circumstances, and generally, the request must be made within 30 days of the Judge’s Order. Under certain circumstances, however, a late request to reopen can be submitted  – sometimes months or years after the removal or deportation order is entered – asking the Immigration Judge to reopen the case “sua sponte,” or on the court’s own will.

In general, the Immigration Judges and the Board of Immigration Appeals (“BIA”) will only exercise their power to reopen a case “sua sponte” under exceptional circumstances. The Judges and the BIA have wide discretion to decide when the circumstances are so “exceptional” that the case should be reopened months or years after the Order is entered.

On January 27, 2011, the Ninth Circuit Court of Appeals published an important decision in a case called Mejia-Hernandez v. Holder, holding that when a Judge or the BIA grant or denies a “sua sponte” motion, the Ninth Circuit generally cannot review that decision.

Mejia-Hernandez concerned the efforts of an immigrant named Bernardino Mejia-Hernandez to reopen his 1997 immigration court case, which had ended in an order of deportation because Mejia-Hernandez failed to appear at his hearing. An Immigration Judge reopened the case “sua sponte” (that is, on the Judge’s own will) for humanitarian reasons (citing, for example, Mejia-Hernandez’s two U.S. citizen children, his permanent resident wife, and the hardship the family would suffer if the case were not reopened), but the BIA overturned the Immigration Judge’s reopening.

On review, the Ninth Circuit refused to review the BIA’s decision to overturn “sua sponte” reopening. The Ninth Circuit held that it lacked the authority to review the BIA’s decision. The Ninth Circuit declined to follow the U.S. Supreme Court’s lead in a recent 2010 case called Kucana v. Holder. In that case, the Supreme Court held that strong matters of policy favored federal court review of a decision by the BIA to deny a motion to reopen. The Supreme Court found that federal law did not prohibit judicial review; that there was a long-standing tradition of reviewing reopenings of immigration court cases; and that there is a strong separation-of-powers concern against giving the BIA too much power in preventing the federal courts from reviewing the BIA’s decisions.

In Mejia-Hernandez, the Ninth Circuit found that Kucana did not apply to “sua sponte” motions, and held that it lacked “a sufficiently meaningful standard” by which to review the wide discretion of the Immigration Courts and the BIA to reopen a case sua sponte.

This decision comes as some surprise in the wake of the Supreme Court’s opinion in Kucana. As Judge Zouhary noted in his dissent to Mejia-Hernandez, the BIA should not be permitted to insulate itself from judicial review by declaring its decisions “discretionary,” and the well-reasoned history and policy that the Supreme Court applied in Kucana could easily translate to the context of a “sua sponte” motion.

Nonetheless, despite refusing to review the “sua sponte” decision, the Ninth Circuit did find that the case should be reopened because Mejia-Hernandez suffered from a fraud committed against him by a person posing as an immigration attorney. The court found that the Mejia-Hernandez did not learn that he had been deceived until many years later, and that the time spent innocently believing that he was being helped would not count against him for the purpose of bringing a motion.

The Mejia-Hernandez decision is, therefore, important not just for its holding regarding
“sua sponte” motions to reopen, but because it is also a reminder that in every case, there are many arguments to be made seeking relief. In difficult cases like that of Mejia-Hernandez, every possible avenue must be explored. For this reason, an alien seeking to reopen a prior case or apply for any immigration benefit is well-advised to consult with an experienced and knowledgeable immigration attorney.

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Robert L. Reeves, who is board-certified, has been specializing in immigration law for 27 years. He has a national reputation as an immigration rights advocate and has successfully represented more than 18,000 immigrants at the CIS and hundreds more in the United States federal courts. He is licensed to practice law before the U.S Supreme Court, the U.S Court of Appeals for the Ninth Circuit, several U.S. District Courts and California State Courts. Reeves has represented clients in numerous landmark immigration cases that have set new policies regarding CIS action and immigrants’ rights. His many successes have been published in Interpreter Releases, Immigration Briefings and AILA Monthly, which are nationally recognized immigration periodicals widely read by immigration lawyers, State Department and immigration officials. His cases are also cited in textbooks as a guide to other immigration practitioners. His offices are located in Pasadena, San Francisco, Las Vegas and Makati City. Tel. no.: 1-800-795-8009; e-mail: immigration@rreeves.com; website: www.rreeves.com.

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