San Diegans have been treated to a feel-good immigration story for the holidays as related here and here. According to the press reports, Marco Chavez, a 45 year old honorably discharged former U.S. Marine, who was convicted of a crime in 1998 and deported for it in 2002, returned to the United States with permission on December 21, 2017.
As the news stories tell it, Mr. Chavez’s conviction was for animal animal cruelty involving a dog. The crime was construed as an aggravated felony which rendered him deportable. He was indeed deported. Then, in April 2017, California Governor Jerry Brown pardoned Mr. Chavez. Then, the story goes, Mr. Chavez filed a motion to the immigration judge at the San Diego Immigration Court seeking to reopen proceedings. Apparently, the immigration judge did and terminated removal proceedings. Mr. Chavez then was able to re-enter the United States under his pre-deportation permanent resident status.
This seems like a straight-forward story with a common-sense ending. Man beats dog – Man convicted of beating dog – Man deported based on conviction for beating dog – Governor pardons man for beating dog – Man allowed back because there is no dog-beating conviction anymore.
The news accounts are deficient. No reporter pinned down exactly Mr. Chavez’s birth date, when he served in the military, his military record, what was his crime, what was his sentence, how long did he serve in jail. There is no discussion of what exactly was filed with the immigration court and when. No one reported what the government’s position was and what was the legal basis of the immigration judge’s decision. It is quite obvious that this story is going to win anyone locally a Pulitzer.
I can tell you that a Motion to Terminate was issued from the San Diego immigration court on November 28, 2017, and the government has until December 28, 2017, to appeal the decision. [KFMB broadcasted Mr. Chavez’s alien number] This is an indication that the government did not join in or file a non-opposition to the appeal. The government can still appeal, but I doubt it would have gone to the trouble of bringing Mr. Chavez back from Mexico if it opposed the termination of proceedings and was planning on filing an appeal. It is possible that the delay in admitting Mr. Chavez was because of the government’s deliberating as to what position it would take, but in reality, for Customs and Border Protection and Immigration and Customs Enforcement to work out re-admitting a person just 23 days after a decision is lightening fast for them. The last time I worked with the government to bring someone back who had been deported improperly, it took nearly a year and a half – and I was really trying.
In addition to the factual limitations of press reports, the legal story is murky. On its face, it sounds logical: Man deported based on conviction for beating dog – Governor pardons man and conviction gone – Man allowed back because no conviction anymore. However, never forget the old adage: common sense and immigration law are like oil and water. They don’t mix.
Is it really true that if a deported person who no longer is deportable can, from outside the United States where he has been for fifteen years, file a motion to terminate his removal case and return to the United States? Is this the case just when it involves a veteran and a gubernatorial pardon? What about a regular guy whose conviction is vacated? Or the courts subsequently find that the crime is not a deportable offense after all? Or the courts conclude the person was eligible for relief for which he earlier was deemed ineligible? Or new facts prove deportable conduct did not actually occur? Do all these people get to come back? It is not excessively liberal-minded to think that all these people should be able to come back, but it is excessively liberal-minded to think that it would not require huge additional administrative resources if deported people could reopen their cases at any time after their deportations.
Immigration regulations on their face foreclose reopening in a situation like Mr. Chavez’s. A regulation at 8 C.F.R. 1003.23(b)(1), regarding immigration judges, states:
A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion.
Further, 8 C.F.R. § 1003.2(d), regarding the Board of Immigration Appeals, states:
A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.
These regulations are affectionately called, “the departure bar.” Two simple elements – if there is a departure, then there is a bar.
Mr. Chavez’s motion to reopen and terminate proceedings cannot survive literal application of the departure bar. The Board of Immigration Appeals, the superior tribunal to the immigration courts, supports the departure bar. A 2008 decision, Matter of Armendarez Mendez, even “overruled” the 9th Circuit Court of Appeal which whittled away at the regulations. The BIA’s holding is clear – “the Board of Immigration Appeals lacks authority to reopen removal, deportation, or exclusion proceedings–whether on motion of an alien or sua sponte–if the alien has departed the United States after those administrative proceedings have been completed.”
The Ninth Circuit Court of Appeals, as well as some other circuits have before and after whittled away at the departure bar allowing for motions to reopen and reconsider in cases like:
When a when a person filed the motion to reopen within the statutory period for filing motions (usually within 90 days of a decision) to reopen from inside the United States and then was removed. Coyt v Holder.
When a person filed a motion to reopen within the statutory period for filing motions to reopen from outside the United States after he was removed. Reyes-Torres v. Holder.
When a person filed a motion to reopen within the statutory period for filing motions to reopen from outside the United States after leaving the United States of his own volition. Toor v.Holder.
The BIA itself, after circuit-court prodding, allowed for the filing of a motion to reopen an in absentia removal case based on lack of notice for someone who departed the United States in Matter for Bulnes. This is based on the in absentia statute allowing for rescission of an in absentia order at any time based on lack of notice.
Some earlier cases, from 2007, Lin v. Gonzales and Reynoso-Cisneros v. Gonzales, allowed for reopening when a deported person returned to the United States after deportation and filed outside the statutory period for filing motions to reopen. These were the cases that the BIA rejected in Matter of Armendarez Mendez. Further, the cases are logically-flawed outliers. Also, because Mr. Chavez’s motion to reopen and terminate proceedings was filed from outside the United States, not relevant to his case.
I cannot find any recent cases extending rejection of the departure bar to untimely filed motions to reopen. A 2006 case, Cardoso-Tlaseca v. Gonzales, allowed for reopening of a deported person when his criminal conviction was found to be potentially infirm as a basis for removal. In Cardoso-Tlaseca, however, while not discussed in the decision, the motion to reopen was timely filed. Another early case, from 1990, Wiedersperg v. INS, also allowed for reopening long after deportation when a criminal conviction was invalid. It is perhaps on this reed that the immigration judge relied (as well as the silence in Cardoso-Tlaseca in a addressing the departure bar). However, these cases are based on infirm criminal convictions, not valid ones pardoned many years after deportation.
There are cases where motions to reopen was denied by the 9th Circuit because of the departure bar. In one case, Avila-Sanchez v. Mukasey, the Ninth Circuit Court of Appeals wrote:
As we have explained before [in Alvarenga-Villalobos v. Ashcroft], the mere fact that the BIA made an interpretation error was insufficient to make its order ‘unlawful….’ In [Alvarenga-Villalobos], the alien had been deported after having been denied § 1182(c) relief, but returned illegally…. He asserted that because the original determination was erroneous, his deportation was unlawful. We rejected that argument and pointed out that at the time of his deportation, the BIA’s action was in accord with the rules that then existed and those were not overturned until over two years later. As we stated: Alvarenga contends that [the provision in question] does not apply to him because the statute applies only to lawful removal orders. However, we need not resolve this issue, because, as we have explained, Alvarenga’s deportation order was perfectly lawful under the law at the time he was deported. “[I]t has long been established that final civil judgment entered under a given rule of law may withstand subsequent judicial change in that rule.
This case converts the departure bar from a mere regulation to a cornerstone of United States jurisprudence.
If the immigration courts and BIA really are going to accept and rule on motions to reopen filed after the statutory period for filing motions to reopen and for a broad range of reasons, this is a watershed event. This could be, however, one of those rare “hold-your nose” type of decisions that come about because of a set of unique circumstances and unique political interest which occur from time to time. If so, the reported 301 similarly situated honorably discharged former servicemembers will have to hope they are similarly nose-hold worthy. Also, if the immigration courts and BIA are going to hold their noses, why just for veterans? What about other people that served their nation or communities? What about other people with strong equities? What about bad people who were deported by mistake? And if we are making exceptions to the execution of the law on a case by case basis in the exercise of executive authority, this is much more of an executive reach than DACA, which only addressed prosecutorial discretion, not admitting deportees in apparent violation of regulations, long-standing policy, and, don’t forget from Avila-Sanchez, a cornerstone of United States jurisprudence.
I, for one, hope the departure bar is dead. That seems most in conformity with due process and equal protection and would be a great Christmas present to the thousands and thousands of people, civilian and veteran, good and bad, who should be able to come home and cannot. Posted December 24, 2017.