Supreme Court Interprets Exhaustion Requirement

The Supreme Court has determined that the exhaustion requirement in 8 USC 1252(d)(1) is a claims processing rule, not a jurisdictional bar. Thus, a party can forfeit or waive an objection to exhaustion. In addition, the Court found that the statute does not require the filing of a motion to reconsider with the Board of Immigration Appeals to give the agency to correct legal errors before filing a petition for review of those errors in federal court. Motions to reopen and reconsider are not remedies of right, and the exhaustion requirement only requires an appellant to seek remedies of right.

The full text of Santos Zacaria v. Garland can be found here: https://www.supremecourt.gov/opinions/22pdf/21-1436_n6io.pdf

Tenth Circuit Applies Reinstatement Bar to Motion to Reconsider

The Tenth Circuit has determined that the reinstatement provision at 8 USC 1231(a)(5) prevents reconsideration of a removal order. The court also found that a prior reinstatement of the order is sufficient to trigger this bar, even if the order has not been again reinstated since the petitioner’s most recent illegal entry.

The full text of Zapata-Chacon v. Garland can be found here:

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110758299.pdf

Fifth Circuit Finds that Motion Based on Change in Law was Properly Construed only as Motion for Reconsideration

The Fifth Circuit has determined that a motion filed based on a change in law (namely, the Supreme Court’s decision in Dimaya v. Sessions) was properly construed as only a motion to reconsider, and not a motion to reopen. As such, the 30-day filing deadline was properly applied by the agency (starting from the date the petitioner learned of the Dimaya decision), instead of the longer 90-day deadline applicable to motions to reopen.

The full text of Gonzalez Hernandez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60274-CV0.pdf

Ninth Circuit Finds that Removal of Petitioner did not Withdraw his Appeal

The Ninth Circuit has determined that when the Department of Homeland Security removes an appellant while his appeal of a denied motion to reconsider is pending before the Board of Immigration Appeals, his appeal is not considered withdrawn under the regulatory departure bar. “We therefore hold that an alien does not withdraw his appeal of a final removal order, including the appeal of the denial of a motion to reopen or reconsider, simply because he was involuntarily removed before the appeal was decided. Rather, we hold that § 1003.4 provides for withdrawal only when the petitioner engaged in conduct that establishes a waiver of the right to appeal.”

The full text of Lopez-Angel v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/27/16-72246.pdf

BIA Address DHS Motions and Asylum in Withholding Only Proceedings

The Board of Immigration Appeals has clarified that the Department of Homeland Security has the authority to file a motion to consider, and has also affirmed that a respondent subject to a reinstated order of removal, who is placed in withholding only proceedings, does not qualify for asylum.

The full text of Matter of L-M-P- can be found here:

https://www.justice.gov/eoir/page/file/1058201/download

Ninth Circuit Addresses Validity of an Appeal Waiver

In what can only be described as a truly fantastic decision, the Ninth Circuit granted a petition for review, finding that the petitioner did not knowingly, voluntarily, and intelligent waive his right to appeal when the Immigration Judge incorrectly advised him that he had been convicted of an aggravated felony and was ineligible for any form of immigration relief.  The court noted that under current caselaw AND caselaw in existence at the time of the Immigration Judge's decision, a conviction for grand theft in California was not categorically a theft offense because it included theft of labor and theft by false pretenses, both of which fell outside the generic definition of a theft offense. 

The full text of Garcia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/05/20/11-73406.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

Seventh Circuit Chastises Attorney for Repeatedly Making the Same Procedural Error

Shaohua He  filed applications for asylum, withholding of removal, and protection under the Convention Against Torture.  When his applications were denied, he appealed the denial to the Board of Immigration Appeals, who affirmed the Immigration Judge's decision.  He then hired a new attorney, who, instead of filing a petition for review with the Seventh  Circuit, filed a motion to reconsider with the Board of Immigration Appeals.  By the time the Board of Immigration Appeals denied the motion, the 30 day window to file a petition for review of the underlying denial of He's applications had expired.  Thus, all He could do was to file a petition for review of the denied motion to reconsider.  Unfortunately, his attorney focused exclusively on the denial of his applications for relief, and did not address why the denial of the motion to reconsider (the issue before the Seventh Circuit) was inappropriate.  The Seventh Circuit signaled out He's attorney by name, noting that he had repeatedly made this procedural error.  The court ordered its clerk's office to send the decision to the Illinois State Bar for any disciplinary action the Bar deemed necessary against the attorney.  The court also noted that if the attorney continued this behavior, it could initiate disciplinary action against him for filing frivolous appeals.

This is the second published decision from the Seventh Circuit this month that identifies an immigration attorney by name and chastises him for inadequate representation.  Seventh Circuit attorneys (and all attorneys for that matter) beware!  You need to understand the rules of appellate court jurisdiction so that you do not forfeit your client's right to an appeal! 

The full text of He v. Holder can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D03-27/C:14-3104:J:Hamilton:aut:T:fnOp:N:1523999:S:0