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New rule allows those outside of the U.S. to reopen their deportation case

By Atty. Robert Reeves

A new ruling out of the Sixth Circuit Court of Appeals, Pruidze v. Holder, (6th Cir. 2011), grants immigrants deported and outside of the United States the right to have their motions to reopen or reconsider heard by the Board of Immigration Appeals (BIA). In Pruidze, the immigrant appealed the BIA’s denial of his motion to reconsider for lack of jurisdiction since he was outside of the US.

Prior to this ruling, the BIA stated it lacked jurisdiction to hear the cases of immigrants not present in the US and would deny motions based on lack of jurisdiction. Jurisdiction is the authority or power for a Court to hear a case.

After a careful analysis of the current Immigration laws passed by Congress, the Sixth Circuit found the BIA was wrong. The Court held Congress empowered the BIA to resolve all motions regardless of whether the immigrant was in the US or not, and must consider these motions. In other words, the BIA does have jurisdiction to hear motions to reconsider and reopen deportation hearings even if the immigrant is not present in the US. The BIA cannot deny a motion by stating it lacks jurisdiction to review the case of immigrants not present in the US.

This is a momentous decision for immigrants not present in the US who want their deportation cases reconsidered. This is especially true for people ordered deported and removed from the US based on criminal convictions that can now be challenged under the Supreme Court case of Padilla v. Kentucky which we discussed at length in a previous article. Under Padilla, the Supreme Court decided that, as a matter of federal law, a criminal defense counsel has an obligation to advise their immigrant client that the offense to which he is pleading will result in his removal from this country.  The Court held that the importance of accurate legal advice for non-citizens accused of crimes has never been more important.  It recognized that deportation is sometimes the most important part of the penalty that may be imposed on non-citizen defendants who plead guilty to specific crimes.  For that reason, a defendant is entitled to the effective assistance of competent counsel before deciding to enter into a plea agreement.

Now, under Pruidze, immigrants outside the US who successfully challenged their convictions under Padilla could file motions to reopen or reconsider their deportation cases before the BIA. This could include other changes in law or circumstance that renders their deportations invalid. The BIA can no longer reject these cases for falling outside of its jurisdiction. But, Pruidze does not require the BIA to grant the motions to reopen or reconsider. The BIA must still review the motions on their merits.

While the Pruidze decision provides new hope for many, the Court’s decision, for now, only applies to those cases falling within the 6th Circuit’s jurisdiction. Also, the Court states the BIA could implement new rules on the types of cases it will accept and process known as “mandatory rules”. The BIA may then have the authority to deny motions based on failing to adhere to these rules. The BIA could categorically reject motions to reopen citing to the existing “departure rule” and regulations.

The departure rule states that an immigrant must be present in the United States in order to file a motion to reopen or reconsider. Also, the departure rule states that an immigrant’s departure from the United States, while a motion to reconsider or reopen an immigrant’s deportation case is pending, constitutes an abandonment of the motion.

The Pruidze Court refused to decide whether or not the departure bar is a permissible mandatory rule since that issue was not before it. It recognized that this could be the subject of future litigation. However, the Pruidze Court’s analysis finds that immigration law explicitly states immigrants have the right to be heard on reconsideration or reopening regardless of whether they are in the US or not. The Court points out that changes to the immigration law beginning in 1996 specifically overturned the BIA’s limitation of jurisdiction to now cover those outside of the US. By remanding the case back to the BIA, the Pruidze Court is giving the BIA a chance to revisit, on its own, whether or not it will accept and review motions filed by immigrants outside of the US. It has provided the BIA with the tools to decide whether the departure rule is valid and strongly suggests that it is not. In the interim, a small window has opened for some immigrants outside of the US to have their motions to reopen or reconsider to be entertained by the BIA. Given the many time limitations involved in filing motions, these immigrants will need to act quickly. We hope the BIA can read the writing on the wall and avoid unnecessary costly and timely litigation by formally rejecting the departure bar rule.

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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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