Wednesday, June 21, 2006

Cruz: BIA Must Explain Refusal To Reopen Sua Sponte

Cruz v. Gonzales
June 21, 2006
No. 05-2764

In this complicated appeal, the Third Circuit ruled that the BIA failed to explain its decision. Not only does that make it hard for the Third Circuit to review the BIA's rationale, but the Third Circuit is not able to decipher whether it has jurisdiction over the BIA's ruling.

Congress passed controversial rules that try to stop circuit courts from reviewing a range of BIA decisions for anything other than legal or Constitutional challenges. One category is where the BIA's decision was based on a crime of moral turpitude.

In this case, the BIA ordered the immigrant deported but the immigrant later was able to get the conviction erased in exchange for Pre-Trial Intervention (PTI) in New Jersey, where he did not have to admit his guilt. (It's fascinating to read all the effort Regis Fernandez put into getting the conviction erased, but I won't get into detail here.) Once the conviction was erased, the immigrant asked ICE in Newark to make a motion to reopen the BIA's original ruling. Immigrants do not have the right to file a motion to reopen if it's more than three months after the BIA's decision, so it makes sense to ask ICE whether they are willing to make the motion. It took many months for ICE to respond that it was not willing to make the motion. The immigrant made a motion to reopen and asked the BIA to reopen it of its own accord (using what is called its sua sponte power).

The BIA rejected the motion but never explained whether it held the immigrant was guilty of a crime of moral turpitude (even though it had been erased off the books) or whether it just did not wish to use its sua sponte power although no conviction existed anymore. If the BIA's ruling was that the conviction still had its effect on the immigration status, then the Third Circuit has little ability to review the ruling. But if the BIA acknowledges the conviction no longer exists, the BIA can review whether the BIA has a general, unwritten policy of approving quickly filed motions to reopen where a conviction is erased (just as it has done in ten previous unpublished BIA cases).

The lessons here are: the BIA can be sloppy in its decisions and fail to give its principled rationale (that is needed for the Third Circuit to rule on the appeal), there is hope though it takes tons of work for overturning convictions where the original criminal attorney did not advise the immigrant of the immigration benefit of seeking PTI, it's never too late to try to get PTI and erase the original conviction, and there is a viable argument that the BIA must grant motions to reopen that are filed immediately after the original conviction is legally erased.

(Keep in mind that by saying convictions are erased, I am referring to a particular legal test for immigration purposes in Matter of Pickering. If a conviction is taken off the books simply because the criminal was later rehabilitated, the BIA says the conviction still has the same negative effect for immigration purposes.)

Congratulations, Regis, for getting as far as you have so far in this case! But the work is not over yet...


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