AMERICAN IMMIGRATION LAW FOUNDATION

Practice Advisory - Motion to The Board of Immigration Appeals or to The Immigration Court to Exercise Sua Sponte Authority to Reopen Where the Respondent Has Been Deported

by Mary Kenney and Traci Hong, American Immigration Law Foundation

July 3, 2002

This practice advisory discusses a possible avenue for reopening cases where the respondents were erroneously barred from applying for 212(c) relief due to retroactive application of AEDPA or IIRIRA and were deported or removed prior to the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271, 150 L. Ed. 2d. 347 (2001).  These legal arguments can also be used in cases where respondents were deported or removed for a felony DUI/DWI under Matter of Puente, Int. Dec. 3412 (BIA 1999), or Matter of Magallanes, Int. Dec. 3341 (BIA 1998), before the Board withdrew from these decisions in Matter of Ramos, 23 I&N Dec. 336 (BIA 2002).

Accompanying this practice advisory are amicus briefs prepared by the American Immigration Law Foundation ("AILF") for 212(c) eligible respondents who were deported prior to St. Cyr.  We encourage you to file these amicus briefs for your clients who were eligible to apply for 212(c) but were deported prior to St. Cyr.  The briefs are already signed.  They should be copied and used in multiple cases.  All you need to do is insert the respondent's name and A number on the cover page.  These briefs should be accompanied by your own motion which request the Board of Immigration Appeals ("BIA") or the Immigration Courts ("IJs") to exercise their sua sponte authority to reopen cases where 212(c) eligible respondents were deported prior to the Supreme Court's decision in St. Cyr ("ESSA motions").

Following are a summary of the argument for the ESSA motion and answers to questions that you may have about the ESSA motion.  The following information is accurate and authoritative, but does not substitute for individual legal advice supplied by a lawyer familiar with a client’s case.

Summary of the argument in the ESSA motion

Although the BIA and the IJs do not have jurisdiction to consider a motion to reopen brought by a respondent who is outside of the United States, they retain the jurisdiction to reopen these cases on their own motion pursuant to 8 C.F.R. §3.2(a) (Board) or 8 C.F.R. §3.23(b)(1) (Immigration Judges).  The St. Cyr decision constitutes a fundamental change in the law, which qualifies as an "exceptional circumstance" that merits sua sponte reopening.  See Matter of X-G-W-, Int. Dec. 3352 (BIA 1998); Matter of G-D-, Int. Dec. 3418 (BIA 1999).  Where the respondent can demonstrate a substantial likelihood of winning a 212(c) waiver, Board precedent compels the Board or an IJ to exercise this authority and reopen the case.

Q:  Isn’t the ESSA motion really a motion to reopen by the respondent in disguise?

A:  No.  The sua sponte review of a case by the BIA or the IJ is entirely distinct from a respondent’s motion to reopen his or her case.  The Board and the IJs exercise this authority independently.  Whether or not a respondent has filed a motion to reopen is irrelevant to the Board or the IJ's exercise of their sua sponte authority.  The ESSA motion argues only that the BIA and the IJs have jurisdiction to exercise this authority, and that prior precedent compels them to do so because of the exceptional circumstance created by the St. Cyr decision.

Q:  Should I file a motion to reopen on behalf of my client along with the ESSA motion?

A:  No.  A motion to reopen on behalf of a client who has been deported will be dismissed by the Board for lack of jurisdiction.  8 C.F.R. §3.2(d), §3.23(b)(1).  To avoid such a dismissal, we suggest that you file only the ESSA motion.

Q:  What should I do if a motion to reopen on behalf of my client has already been filed and is either pending or has been dismissed?

A:  A previously filed motion to reopen does not prevent you from filing the ESSA motion.  The time and number limitations on a motion to reopen do not apply to sua sponte action by the Board.  You should file this motion as a separate document.

Q:  What can I do if the Board never rendered a decision in my client’s case?

A:  In cases in which the Board never rendered a decision, the ESSA motion should be filed with the Immigration Judge who ordered your client deported.  The grant of authority for sua sponte reopening by an immigration judge is found in 8 C.F.R. §3.23(b)(1).  For an Immigration Judge to exercise his/her sua sponte authority, the judge must have previously rendered a decision in the case.  Additionally, it must be a case in which jurisdiction has not “vested” with the Board.  Id. 

Q:  Do I need to demonstrate that my client is eligible for relief under St. Cyr?

A:  Yes.  For the Board to consider sua sponte action, the respondent must be able to demonstrate “a substantial likelihood” that the result in the case would be changed if the Board exercised its authority.  Matter of Beckford, Int. Dec. 3425 (BIA 2000).  Thus, you must fully document your client's eligibility for relief under St. Cyr and explain how the equities in the case would lead to a favorable decision on your client’s 212(c) application.

Q:  Can I use this motion if my client departed from the U.S., but has since returned and is currently in the U.S.?

A:  Yes, but with the following caveats.  While the ESSA motion is best used in cases where the individual remains outside of the country, it can also be used in a case in which the individual left the country after the final order and then returned.  However, an individual who files the ESSA motion after he or she has returned illegally to the United States runs two risks.  First, the INS may move immediately to reinstate his or her deportation or removal order under INA §241(a)(5), 8 U.S.C. §1231(a)(5).  See e.g. Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169 (9th Cir. 2001).  Once the prior deportation or removal order is reinstated, the ESSA motion will likely be denied, as the Board has held that it is without jurisdiction to review a reinstated removal order.  Matter of GNC, Int. Dec. 3366 (BIA 1998).  Second, he or she may also be indicted for illegal reentry after deportation or removal under 18 U.S.C. §1326.  See e.g. U.S. v. Hernandez-Rodriguez, 170 F. Supp. 2d 700 (N.D. Tex. 2001).  But see U.S. v. Diaz-Nin, 2002 U.S. Dist. LEXIS 3393 (D.V.I. 2002).

Q:  Should I file the ESSA motion if my client has already been indicted or convicted of illegal reentry under 18 U.S.C. §1326?

Yes.  If your client has already been indicted or convicted of illegal reentry, then he or she is already facing the risks of reinstatement and prosecution discussed above.  On the other hand, you may be able to get the indictment dismissed or the conviction overturned if the BIA or the IJ grants the ESSA motion.

AILF will be monitoring how the Board, the Immigration Courts and the INS react to the ESSA motion.  If you use the AILF ESSA amicus brief, we ask that you contact Traci Hong at thong@ailf.org to let us know that you have done so and to keep us informed on the status of those cases.