Sunday, April 27, 2008

Wilks (not precedential): BIA Must Clarify Whether Refusing To Reopen Sua Sponte For Vacated Conviction/Sentence

Wilks v. Mukasey, Nos. 06-4653 & 07-2131 (3d Cir. Apr. 15, 2008) (not precedential)
Judges Scirica, Chagares, Aldisert

If you get a conviction vacated so that it no longer applies for immigration purposes, try to reopen your case. If the BIA denied your appeal long ago, you need to make a motion for the BIA to reopen the case sua sponte. The Third Circuit notices that the BIA frequently reopens a case sua sponte where a conviction is vacated so the immigration consequences are vastly different.

In this case, the BIA was not clear why it denied the motion to reopen sua sponte. Was it because although it would reopen a case if a conviction was vacated, it for some reason thought this case's vacated conviction was not really vacated? Or was it because the BIA believed that despite its track record, even if the conviction here was vacated they still did not wish to reopen the case?

Because there is a possibility that the BIA made a legal error (possibly it would have reopened if the conviction was vacated and it made a legal error in thinking the vacated conviction was not truly vacated), the Third Circuit granted the appeal and remanded the case to the BIA to provide clearer analysis and possibly fix what might have been its mistake.


Post a Comment

<< Home