- Immigrants Can Pursue Cases From Outside the United States
- Immigration Alert- Immigrants Can Pursue Cases From Outside the United States
- Immigrants Can Pursue Cases From Outside the United StatesSent: Wed, Oct 2, 2013 3:11:45 PM
Last week, the First Circuit Court of Appeals held in Perez Santana v. Holder that individuals who have been deported must have the opportunity to pursue a motion to reopen their immigration cases from outside the United States. A motion to reopen is an important procedural safeguard that helps ensure noncitizens are afforded a fair immigration hearing.
Despite having lost in nine other circuits, the government continued to vigorously defend a regulation – the so called “departure bar” – barring individuals from pursuing their cases from outside the United States. This most recent decision means that all but one circuit court of appeals has rejected the government’s arguments and concluded that the regulation is unlawful. Only the Eighth Circuit Court of Appeals (comprising of Arkansas, Iowa, Missouri, Minnesota, North Dakota, South Dakota and Nebraska) has yet to rule on the legality of the departure bar.
In this case, Vladimir Perez Santana, a lawful permanent resident since the age of 9, was ordered removed based on a single criminal conviction. He sought a vacatur of his conviction on constitutional grounds and asked the immigration agency to defer his removal until the criminal case was resolved. The agency refused to do so and deported him. The criminal court subsequently vacated Mr. Perez Santana’s conviction – thus removing the only basis for his removal – but the Board of Immigration Appeals declined to reopen and reconsider his immigration case because of the “departure bar” regulation. The Court’s decision means that Mr. Perez Santana will have the opportunity to present his argument for why his case should be reopened and he should be restored to his lawful status.
So immigrants who have been deported from the United States can through counsel seek a motion to reopen their cases, if the basis for their removal no longer exist. There are time limitations for bring such motions. Please consult with your immigration attorney immediately if you or a family member has been removed from the US and has reason to believe the removal was wrong or the reason for the removal no longer exist.
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