KURZBAN’S INOHGRATION LAW SOURCEBCAy [Finding LPRs departure during INS appeal does not result in dismissal for mootness or rounds that appeal is withdrawn, Deperture prior to appeal but subsequent to decision also ee stitutes withdrawal. 8 C.F.R. §1003.3(e); 8 U.S.C. §1101(g). Departure or deportation after fin, a motion fo reopen or reconsider is deemed a withdrawl, Nori @ motion to reopen or recosie permitted to be filed if person has departed the US. 8 C.ER. §1003.2(@), Navarro-Miranda Tisheraft, 330 F-3d 672 (Sth Cit. 2003) [Finding §1003.2(d) a reasonable construction and ro conflict with §1003.2(0) allowing for sua sponte reopening): See also Patel v. U.S. Atoray General, 334 F 3d 1259, 1261-63 (1th Cir. 2003) [Court of appeals lacked jurisdiction besa ofthe criminal alien bar under INA §242(a\(2)(C) to review the denial of motion to reopen nig SCHR. 1003.26) where the person was out ofthe country and the distriet court lacked habes Fisdition because the person was no longer in custody]. But see Wiedersperg v. INS, 896 24 1179 (Sth Cir. 1990) [Where conviction vacated after respondent deported, he could seek ream} Withdrawal or self-deportation generally does not occur where person left after OSC had isu bit before deportation hearing occurred. Mrvicav. Espend, 376 US. $60, 563 (1964). Howevy, the I) may enter an order in absentia, Joo. INS, 813 F.2d 211 (Oth Cit. 1987), See Chap Section (X)PX3)(U). But section 8 C.F. §1003.3(4) bars only persons who depart fr renal proceedings begin. Sing vx Gonzales, 412 F.3d 1117, 1120-21 (Sth Cit. 2005) [Person hod pars before removal proceedings are initiated and seeks motion to reopen to vacate in also Drder isnot bared by §1003.2()) The BIA takes a different view in former exclusion proceedings. Matter of Keye, 20 18N Da: 158 (BIA 1990) Mater of Kennedy, 13 1&N Dec. 242 (BIA 1969). In Kevt, the BIA held hate departure of an applica: in exchsion during appeal éoes not consttte withdrawal and ds at moot the appeal, See also Matter of Morales, 21 I&N Dec. 130 (BLA 1996) (on rehearing) [Ded clined to vacate as moot an interlocutory decision that was made ater excludable person ves 4 ported), In addition, departure does not moot request for former INA. §212(¢) relief ewe Seportaion Mater of Brown, 18 I&N Dec. 324 (BIA 1982) of where DHS secks review ofl finding respondent not deportble. Mater of Luis-Rodrigus, 22 IGN Dec. 147 (BIA 193, sce Mutter of Okoh, 20 18 Dee, 864 (BIA 1994) [BIA las no jorndeion to decide motion Consider after applicant excluded and deporte), 4 . Reinstatement of Voluntary Departure 1. The BIA will seinstate voluntary departure that expired during the course of the respondent 3¢4 rinisrative appeal unless: (I) the respondent failed to post the necessary $500 bond within Sa Of the 1/’s order on VD; or (2) there are specific reasons nat to reinstate the 1's orders ffivolous appeal or one filed for delay. Matter of A-M-, 23 1&N Dec. 737,742-44 (BIA 208) [Matter of Chouliaris followed and BIA will reinstate voluntary departure for up to 60 és gave 60 days but cannot give a greater time than IJ ordered, However, reinstatement wil ‘ranted only if respondent posted the $500 required within 5 days of the 1J's order| Matera Chouliaris, 16 I&N Dec. 168 (BLA 1977); Matter of Patel, 19 1&N Dec. 394 (BIA 1986) [Nowy instatement where appeal is frivolous]: Marer of -P-, 20 1&N Dec. 230 (BIA 1990) [Rea tment of voluntary departure denied where respondent granted 6 months voluntary depart no other relief requested} The circuit courts are divided as to whether a respondent whose case the BIA reopens hs i the terms of hevhis voluntary departure by filing to depart during the voluntary departure Fe Compare Azarie v. Ashcroft, 394 F.3d 1278, 1288-89 (Sth Cir. 2005) [Holding that a motion ‘open filed within the VD period, coupled with request fora stay of removal, tolls the VD Se etat respondent isnot barred from cancellation of removal for having filed to depart al ¥. Gonzales, 424 F.3d 330 (3d Cir, 2008) [Agresing with Azarte; and Sidithowya v. GOH 407 F.3d 950 (Sth Cir. 2005) [Same] with Banda-Ortiz v. Gonzales, 2006 WL 774925, Nt 61100 (Sth Cir, Mar. 28, 2006) [Holding that BIA’s decision to reopen case does not cure 9S dent’ failure to depart during the voluntary departure period) D. Motion Practice 1. The BIA has regulations governing motion practice in cases over which it last exercise tion, 8 CFR. §1003.2, Motions are filed directly with the BIA. 8 CFR. §1003.22) 3 is a matter initially adjudicated by a service officer (e.g. I-]30) in which case it shall be sie the office having control over the record. § CFR. §1003.2(gX2)i). All motions mss iW'S lMGRATION Law SoURCEEGg,| CHAPTERS + ADMINISTRATIVE REVIEW 855 ‘have a separate EOIR-27, By 341 F.3d 1015, 1019 n.2 (9th Cir. 2003) [Where counsel for fling of a brief before the Bi, granting asylum to husband based on vig bet isnot a fitureg | __ Wife's forced abortion claim but denying asylum toile the ee “wonderfed] how any rational f When a briefs ied, terejg | s)sem could tolerate sich inconsistent teapnent) Ramirez-Alejandre v. Asherofi, 320 F.3d 858, “tlcrof, 288 F.3d 1126, 139, 860-61 (Oth Cit. 2003) (en banc) [Comparing BIA eat of suspension cases to a game with. cat basis to assume BIA did ng | out rules that “morphed without any consistency, hee fact-finding to pure appellate review of a Day got” thereby violating due process]; Yadegar-Sargisv INS. 999 Et oa (ith Cir. 2002) | Teg ais endering decision created substantial hardship on widow who ig none os ‘years old and a brief within 21 days of Teetipt! INS should take Steps to avoid her returning to court}; Meghani y, INS, 236 F.3d 843, 848 (7th Cir. thee Dane SETeeARE Of oppme | FH) Lowe years to dea esteem for the delays that plague INS proceedings” in eace when: their briefs and reply brets om} BIA 200k 7 years to-decide asylum appeal Rodriguez-Barajas v. INS, 992 F.24 94, 98 (7th Cir Mee geen Mey obttinane| Toon, esonscionable delay” in rendering decision}; Galina v. INS. 213 3a 955, 958-59 2 date. However, in the absene (7th Ci 2000) [The Court found the Board's analysis “woefully inadequate” and stated that: “The Sion rae a ee fe enentay ce oa om eB law, the mules of logic, and common sense seem to have inthe dee ora brief is de | ded the Board in this as in other cases"; Marquez v. INS, 105 F.3d 374, 378 (7th Cir. 1997) im the date of the order granting | [°By laying a coat of confusion on top of ihe Immigration Judge's more intelligible opinion, the ses gt violate duc proeax | 2 ane dior aaneg in HL] Stankovic w. INS, 94 F.34 1117, 1120 (7th Cir 1096) ones ‘oy | [The Boards own discussion of the ease suonshy, suggests that it had not read, or was eonfuren 1 Cit 2008) [where transom, | shout, the record or the Immigsation Judge's decision”], Yepes-Prado v. INS, 10 F 3d 1363, 1367 aan BIA's failure to set standard of review in INA §212(@) case a8 inne SG ass fatmess requis ix | OO CO sraonishing and incoherent}: Osorio v. INS, 18 F.3d 1017, 1030 (2d Ci, 1994) [The 362 F.3d 1164 (9th Cir, 2009) ¢ BiA's decision reveals a complete lack of understanding ofthe political dynamics in Guatemala}; space ee scbedle to wea | Gon IS ee 13, 14 (ith Cir. 1994) [Finding BLA’s analysis in asylum o¢ dete “a prit beyond the scheduei | Board seems unaware of the elementary facts of contemnnrnry hivoon eee drat 4 opposing party. Getachew », tear vitally on its missiou"]; Ornz-Salas v. INS, 992 F.2d 10s (7th Cir. 1993) (Criticizing failure Ee pene eteeniioat a oe ae Adequate transcript and failure to decide what standard of review te mia applies}; Pe fares | __Ritws-Martines. INS, 999 Pod 1149. 1147 (Sth Cit. 1993) [Deseribing BIA’s reasoning in deny ee 3(eKnin | #28 asylum as a “awed syllogism” and “ms Sequitur"); Montecino v. INS, 913 F.2d S18, 931 GinGr_1090) The BIA has also been chastised for the insuficient tine svete submit briefs Gees Provision of tansripts, Escobar-Ramos»: INS, 997 Fates: dean (9th Cir. 3 decision within the jursde 221) Granting less than 15 days to write a brief when EOIR took tw years to produce tran- HIR-29 within 30 days of tie 2 6) eats the Jailure to provide notice as to the time for iling’a brief, Chike v. INS, cision and not with the BIA bi g24 961 (Sth Cit. 1991) [Reversed final order of deportation here respondent not notified of briefing schedule]; and the failure to provide notice of te decision, Reid v. INS, 949 F.2d 287 Baad eee eee (Oth Cit, 1991) [Failure to provide written notice constitutes reve ol, erro] 23.1(@). The BIA still reais fay in deciding appeal may not be a due proces violation, Maghsoudl v. INS, 181 F.3d 8, “not favored.” En bane pr clay in processing appeal was not violation of due process] ot 2 > to maintain consisteny of v: INS, 245 F.3d 1143, 1149-51 (L0th-Cir, 2001) [A 9-year wait gal quality of BIA decisis ese cases at the adminisee .” Benslimane’ v. Gonzales fused to grant continue 2 183 emoval against Fleuti and statutory and regulatory challenges ‘aarlmaton 2 aie Cit se SUOMARO and § CER. IQ); MeharRus si Ses tlesly aftned eytod Upholding former 8 CER. §34 from APA and Fleut atack wag relying on (7th Cir. 2004) iit igh US. ; 259 F.2d 850 (9th Cir. 1992), See also Aleman-Fiero v. INS. fer x on tppeal is ied); Berit dorea Ror teatltion]. One cour has determined that even an involuntes nama Sime & ponent actions were sufficient to constitute 2 waiver of his right waved ae, hat the cinait cout aa Foals, 420 F-3d $16 (Sth Cit, 2005) (Altnough respondent was a passenger tuna v. Asherofh, SHEE Sot ag wha Ove 40 Mexico, the court rea the statute as requting no exception fn Kenyans were granted a wae fesponent's own conduct in going near the border and not eying ag undaion of tre rect yin cobstitted a waiver). But see Martines De Bojorgues Ashcroft, 365 F.3d 800 (9th Cir. ¥. Ashcroft, 366 Fd 2004) [Applying 8 CFR. §1003.4 to person whe briefly departed the US. by crossing the Mexi- they did not presents proce for medical westment without being notified of Conseauenee or departure violated due x sv Preess]. However, departure of a respondent during an appeal by DHS does not withdraw the 2 ses 2] Das pr eT ofa repose Of Lats Rodrigues, 22 18N Des, 147 (BIA 1999)ee Jon Law SOURCEBOOK CWUPTERS * ADMISSION AND REMOVAL 171 Mansoor v. INS, 32 Pearce (Lyons ID, 694 P.24 969, 978 (Or. 1985); State v. Ginebra, 11 $0.24 960 (Fla. 1987) Mauricio v. INS, 989 [Disspproving of Ewan v State, 393 So.24 597 34 DCA 1981) and holding that fale to a Cie 1991) (3 nota ‘ise is insufficient to invalidate plea}; Bruder v. State, 603 So 24 657 (Fla App. 3 Dis.1992) 783 F.26 181 CO [Even where lawyer gives misadvie to client judge's colloquy informing person of immigration 389 F Supp2d 1042, consequences vtates any misadvie]; Matter of Forts, 14 1&N Dee. 376 (BIA 1974). See also in preven ite sentence this chapter "Motion to Withdraw Ple,” Section VILE (p.178, ina, J Following Supreme 4. A plea may be vacated where counsel was ineffective and made false promises to defendant not challenge through | may be more suscep 81) [Found prejudice Blackledge . Allison, 431 U.S. 63 (1977) [Allowed defendant to proceed on habeas petition where he alleged that facially valid plea was invalid because it was based upon a false promise by his ineffective counsel} 5, A plea of guilt does “not constitute an admission that the petitioner possessed ... any particular amount of [the drug] .." and an 1J cannot ignore any evidence that contradicts the indictment. a for immigration pur Martinee-Benitezv. INS, 956 F.2d 1053 (Ith Cit. 1992) ymectiet (Conn. Gen 6 Nolo contendere plea is conviction for immigration purposes. Qureshi v. INS, $19 F.2d 1174 fontana (MCA $46- (3th Cir, 1975). 5§2937,06, 2943.03}: 192); Texas (Tex. Code Guilty plea or nofo plea is only conclusive for immigration purposes where conviction requires all re ote shies dopaabe ofan, Soo Homans ING SAG Pad Ge Ca a plea to 8 U.S.C. §1325 was not conclusive for violation of former INA §241(a)(13), 8 U orm defendant of three $1325). nereomilion WS "©. Fas rack ples for defendant chard under 8 U.S.C $1326) [ound a US, afer dur al ordered where judged tion) are legal even if not offered to every defendant and U.S. is not under an obligation to offer it igrtion consequences to every defendant. US. v. Martinez Martinez, 442 F.3d 539, $4143 hth Cz. 2006) [hn ight of ian elo alt crane! sision pein a rack Soest rcppiang ols cero a toot nor uarsaendie stopy foam ives pened eee tee ee conviction for imigra track program]; U.S: v. Estrada-Plata, 57 F.3d 757 (Sth Cir. 1995). ) {Finding Alford plea to 9. Where no conviction exists because plea withdrawn, then court will remand immigration case back to LI. Quedraogo »: INS, 864 F.2d 376 (Sth Cir. 1989). F.34 179 (2d Cir. 2002) D. Foreign Convictions. Generally, foreign convictions cannot be collaterally attacked. Chiaramonte the plea would notnee INS, 626 F.2d 1093 (2d Cir. 1980) [Violates comity to permit challenge]. But see Lennon INS. 527 (11th Cir, 1985) {Whee | F.24 187 (2d Cit. 1975). Convietion analogized t Title 18 of U.S. Code or D.C. Code in determining resonment and exeeution ‘is nature. Moreover, if foreign proceeding violates American public policy or reflects fraud or prt ) {Criminal defense att dice, it can be attacked. Tahan v. Hodgson, 662 F.2d 862 (D.C. Cit, 1981), Also expungement of per- ind to advise them of en's foreign drug-related conviction pursuant to a foreign rehabilitation statute will not prevent a ative assistance); US finding of deportbitty even if the expungement were equivalent to the federal first offender statute (Fla. 1988) (Where ator Mater of Dillingham, 21 1&N Dec. 1001 (BIA 1997). The Board's decision in Dillingham, however, jin re Resendiz, 1934 U2 versed and is therefore not the law in the Ninth Circuit, Dillingham v. INS, 267 F 34 996 (Sth rrerroneous advice om * | Ci. 2001) [Finding thatthe BIA's decision to refuse to recognize a foreign expungement for frst time dant must demonstas® 7 oflendes under Great Britain's Rehabilitation of Offenders Act of 1974 violated equal protection), Bur Cal. Rott. 328 (1987 ‘ee Elkins v. Comfort, 392 F.3d 1159 (10th Cir. 2004) [Equal protection not violated by refusal 10 ex- 72.Ca. Rpts 34(C.A7. | FFOR wearer fo foreign expunged conviction , 616 P2 Y | EMisprision Sotctati et tsprision Solicitation. The plea or determination of guilt toa crime suchas solicitation or mispri- 46 P.2d 523 (Colo. VEN} son may not be bs aot be considered to be a conviction ofa deportable offense. Thus, misprision ofa felony is tigate relevant immisr | t considers a °C : Fad 7 (a Ce r 2005) [Immigration com | ours! t advise esponi ition}; U.S. v. Del Rosa rarding immigration cs irug crime, Castaneda de Esper v. INS, $57 F.2d 79 (6th Cit. 1977); Matter of Dec, 281 (BIA 1977) [BIA followed the Sixth Circuit's ruling in Castaneda de E: ion is considered such a crime. Matter of Beltran, 20 I&N Dee, 521 (BIA 1992); Pe- 383 F.3d 302 (Sth Cir. 2004) [Felony solicitation to transport marijuana for sale under Velasco, 16 1&N er), but solicitai 15%. Ashorofi, ab | Rev. Sat §13-1002 is a drug crime]. B ido-Durazo v. INS, 123 F-3d 1322 (9th Ci {Same}; US. », Yearwoth Fj '3-1002 is a drug crime]. But see Coronado-Durazo v. INS, 123 F.3d 1322 (Sth Cir. (Samet oscar tt | jr?) (Beran not followed). Misprision is also. not considered an aggravated felony under ee C1976, USE ex43xs) relating to obstruction of justice. Matter of Espinoza, 22 1&N Dec. 889 (BIA 1999) Ni Iietion arises over whether the crime (of misorsion sclixsaar’ is. clnze™ = 3 F.Supp. 586 (ED. Mi vin 7 _ fe oa 7360 i offense that m cannot o° separ i See eg cu taint b Juante, 571 NE28 A! (tlt Cit. 2002) [Mig rision of felony is a ‘where it arose in connection with Sloe 785 P2622 attic lMtsprnen of felony i CMT whee ne as ee iRADI 5 report them stolen to local police, and export them to Kuwait