Sunday, October 21, 2007

Grewal (not precedential): If Departed While Motion To Reopen Pending, Argue A Regulation Is Illegal

In Grewal v. Keisler, No. 05-3152 (3d Cir. Oct. 18, 2007), the Third Circuit applied a very harsh regulation against someone who was wrongly ordered deported, filed a motion to reopen, and then left the country before the BIA officially granted the motion to reopen.

There is a regulation at 8 CFR 1003.2(d) that says if someone leaves while there is a motion to reopen pending, the motion must automatically be viewed as withdrawn. Just because a regulation says that, though, does not mean that the regulation is a valid one. It is possible to argue that the regulations is invalid because it has no basis in the laws that Congress passed. The Fourth Circuit held that this regulation is invalid in William v. Gonzales, No. 06-1284 (4th Cir. Sept. 6, 2007). The Third Circuit in this case did not address that issue, though, on the view that nobody explicitly raised that question with it.

So we have a strange situation where the Third Circuit will apply a regulation without studying whether that regulation is valid, all because nobody has raised that issue to them or the court below. This almost feels like when someone plays a bogus word in Scrabble and hopes that the opponent will not challenge it, thereby taking advantage of the situation and scoring points for something that was invalid. It may seem a bit unfair for the government to take advantage of immigrants (who are not given the right to appointed counsel!) in this way.

The fair solution would be for the government to say that it would be unseemly to take advantage of immigrants by invoking a questionable regulation and agree to raise the issue with the BIA so this can be fairly resolved. Here's guessing, though, that the immigration authorities will chalk this one up as a victory and refuse to allow the issue to be fairly resolved.


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