First Circuit Finds Jurisdiction to Review Legal Errors in Denials of Sua Sponte Motions to Reopen

The First Circuit has determined that it has jurisdiction to review constitutional claims or errors of law that arise in the agency’s adjudication of sua sponte motions to reopen. The Court also found that the “BIA departed from its settled course of accepting full and unconditional pardons granted by a state's supreme pardoning authority when the pardon is executive, rather than legislative, in nature. The BIA's policy has been shaped by its prior decisions accepting pardons from authorities whose powers were conferred by statute and rejecting pardons that were not deliberative, even when constitutionally guaranteed. From these BIA decisions, it is evident that "executive in nature" does not require the power to pardon be presently inscribed in a state's constitution. As the BIA premised its denial of Thompson's motion to reopen on the insufficiency of a Connecticut pardon for purposes of the Pardon Waiver Clause, we remand to the BIA to determine whether to reopen Thompson's immigration proceedings sua sponte against the correct legal background.”

The full text of Thompson v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/18-1823P-01A.pdf

Seventh Circuit Chastises BIA for Failing to Take Note of Widely Reported Country Conditions

Deng Arej was born in the southern part of Sudan, but later relocated to the northern part of Sudan.  He was admitted to the United States as a refugee before Sudan split into two countries.  As a result of a criminal conviction, he was ordered removed.  After 8 months of detention, he sought to reopen his case based on changed country conditions, including the rapidly worsening conditions in South Sudan.  The Immigration Judge denied his motion, finding that he had not demonstrated any material changed conditions.  The Board of Immigration Appeals (BIA) affirmed.

The Seventh Circuit reversed.  The Court noted that the BIA "ignored the growing violence in the south during this period."  Furthermore, a competent immigration service would not ignore world events. The dramatically worsening conditions in South Sudan have been widely reported, with the young nation described as “cracking apart” and United Nations officials raising concerns about genocide. Tens of thousands of civilians have been killed, every major cease‐fire that has been painstakingly negotiated by African and Western officials has been violated, and dangerous fissures are opening up within the South Sudanese military.  And time doesn’t stand still. The Board’s order dismissing Arej’s appeal from the immigration judge’s denial of his motion to reopen was issued on May 8, 2015—almost two years ago. Considering that Arej has not yet been removed and that the order was perfunctory, the Board should consider whether he should be allowed to present evidence concerning current conditions in the two Sudans."

The full text of Arej v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D03-28/C:15-2061:J:Posner:aut:T:fnOp:N:1937333:S:0

Fifth Circuit Finds that Equitable Tolling Applies to the Filing Deadline for Motions to Reopen

In a break from its past precedent following the Supreme Court's decision in Mata v. Lynch, the Fifth Circuit has determined that equitable tolling can be applied to the filing deadline for statutory motions to reopen.  In this case, a former lawful permanent resident moved to reopen his case 11 years after he was ordered removed based on several positive changes in law.  The Fifth Circuit remanded to determine if these changes in law could toll the 90 day filing deadline typically applied to a motion to reopen.  Though the Court expressed no opinion on whether tolling was appropriate, it did note that the petitioner would need to prove: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

The full text of Lugo-Resendez v. Lynch can be found here: 

http://www.ca5.uscourts.gov/opinions/pub/14/14-60865-CV0.pdf

First Circuit Finds that Agency Applied Incorrect Standard of Review to Motion to Reopen

Alan Soares Renaut sought to reopen an in absentia removal order on the basis that he received legally insufficient notice of his hearing.  The hearing notice was sent to the address provided by Renaut (which both he and a friend residing there confirmed was his mailing address) but was returned to the court as undeliverable.  

The Immigration Judge (IJ) denied his motion, finding that Renaut was made aware of his obligation to immediately notify the Immigration Court when he changed his address and he failed to do so. The IJ then found that although the hearing notice was returned to the Court as undeliverable, it had been sent to the Respondent at his last known address. Renaut appealed to the Board of Immigration Appeals (BIA), arguing that the IJ conflated the regulatory standards that govern the entering of an in absentia removal order and the requirements to reopen one. The BIA affirmed the IJ's decision, finding that Renaut evaded delivery of a properly sent hearing notice by relocating without providing the required change of address.

On appeal to the First Circuit, the court recognized that the statute governing notice still contemplates that an individual make not receive a hearing notice, even if it is properly mailed to that person's last known address.  Thus, an individual could successfully seek reopening if he could show that he complied with the address reporting requirements but still did not receive the notice.  Even though Renaut had physically left the address he had provided the court, he and his friend living there confirmed that he continued to receive mail there (in other words, that the address provided was still his mailing address).  Thus, the agency's conclusion that he was trying to evade delivery of the notice or shirk on his responsibility to notify the court of his new mailing address was unwarranted.  

The full text of Renaut v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1766P-01A.pdf

Eighth Circuit Affirms Denial of Motion to Reopen and Motion to Reconsider

Martinez filed an untimely motion to reopen his removal proceedings alleging changed country conditions in his home country of Guatemala.  He based his fear of returning to Guatemala based on the targeting of members of his church youth group, and provided evidence that a friend had been murdered in Guatemala since his last hearing.  However, the Board of Immigration Appeals denied his motion to reopen, noting that Martinez had not established that his murdered friend was a member of youth group or that his death was otherwise related to Martinez's asylum claim. The Eighth Circuit affirmed, finding that the friend's murder was simply indicative of violent conditions in Guatemala that already existed at the time of Martinez's merits hearing.  For similar reasons, the Eighth Circuit affirmed the Board of Immigration Appeals' denial of Martinez's motion to reconsideration of the denial of his motion to reopen.

The full text of Martinez v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/05/141213P.pdf

Third Circuit Criticizes BIA's"Cherry-Picking" Analysis of Country Conditions Evidence

Occasionally, I run across an unpublished case that I think is worth blogging about.  This week, the Third Circuit dismissed an appeal stemming from a decision by the Board of Immigration Appeals (BIA) to deny Jin Long Zhang's motion to reopen his removal proceedings based on changed country conditions in China that related to the likelihood that he be persecuted as a practicing Catholic.  Although the Third Circuit ultimately determined that the BIA did not abuse its discretion, it expressed significant reservations about the BIA's analysis.

First, the court noted that the BIA’s analysis of the Religious Freedom Report was troublesome, as portions of the report that supported Zhang's option appeared to have been ignored.  "For instance, the BIA failed to address a portion of the Religious Freedom Report that indicates that religious adherents have been 'harassed, detained, arrested, or sentenced to prison . . . for activities . . . related to their religious beliefs and practice.' This statement, among others, appears to directly relate to and support Zhang’s claim of changed country conditions in China."

Second, the BIA attempted to rely on the adverse credibility determination rendered in Zhang's removal proceedings to discredit the evidence submitted in support of his motion.  The court was troubled by this, as Zhang's original asylum claim was based on a different ground (resistance to a coercive population control policy) than the one supporting his motion to reopen (religion).

Third, the court criticized the BIA's treatment of news articles supporting Zhang's motion to reopen, noting that "the BIA did not appear to consider these news articles at all, and, if they were considered, there was no explanation provided for why they were rejected."  The court stated that in other circumstances, this could be ground for a remand.

For those attorneys frustrated by an adjudicator's apparent disregard of supporting evidence for no reason, this decision may provide some excellent arguments on appeal.

The full text of Zhang v. Att'y General can be found here: http://www2.ca3.uscourts.gov/opinarch/134504np.pdf