In reflecting over immigration news over the years, I notice how different the news is. In the past concern has been over new court and Board of Immigration Appeals decisions about ambiguities in the actual laws. The news still has court decisions, but not about tackling nuances in the immigration laws, but rather decisions on executive branch unilateral moves like actions concerning eligibility for release from custody, denying asylum to people who traveled through other countries on the way to the United States, wall money, travel bans…. In this cascade of executive actions and litigation over them, the old fashioned business of courts deciding ambiguities in the actual laws has fallen off the screen.
One such under-reported case decided two weeks ago is Menendez-Gonzalez v. Barr, a Ninth Circuit case decided on July 11, 2019. The issue in the case is an important one – when should the Board of Immigration Appeals reopen a case?
Here are the facts in Menendez-Gonzalez. Mr. Menendez-Gonzalez came to the United States entering without inspection in in 1985. In 1990, he pled guilty to violating California Health & Safety Code § 11351, possessing a controlled substance for sale. In 1994 he was deported. He came back illegally that same year. In 2009, his conviction was vacated because of concern that he was not given the proper advisals as to the consequences of the guilty plea. He then sought to reopen his removal proceeding because the underlying conviction was vacated. While he still would have been deportable for entering without inspection, the guilty plea made him ineligible for relief from deportation when he had immigration court in the 1990’s.
The issue is what happens when a person is ordered deported and then the basis for the deportation goes away? Let’s suppose someone is denied a real estate sales license because of a prior shoplifting conviction and then the conviction is vacated, should the person be allowed to be a realtor? One can quibble about the analogy – selling drugs is not as serious as shoplifting – but that misses the point about the conviction that caused the bar to relief from deportation or being a realtor being vacated. Also, being denied the ability to be a real estate salesman is not nearly as harsh as being permanently banished from one’s family and, in many cases, country of long association.
A basic struggle in the law is evident: the goal of finality versus the goal of fairness. In this case, is it fair that a person be banished from the United States based on a vacated conviction from 28 years ago versus the question of when a court decision is final and unreversible? After all, the immigration courts are already woefully backed up. Should every litigant in every removal case be able to come back years after having been removed and burden the system with motions to reopen as laws change and novel interpretations of the law emerge?
The regulations provide a simple but harsh solution to this dilemma, the departure bar, a regulation at 8 C.F.R.§ 1002.23(b)(1), which 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.”
The Menendez-Gonzalez court astonishlingly addressed the departure bar early in the decision writing, “This court granted the government’s unopposed motion to remand to the BIA in light of a subsequent Ninth Circuit decision on the departure bar. In that case, Reyes-Torres v. Holder, 645 F.3d 1073, 1075–77 (9th Cir. 2011), we held that an alien who filed a motion to reopen after being deported from the United States was not precluded by the departure bar from pursuing the motion.”
If only that was what Reyes-Torres held. It did not hold that the departure ban is illegal or unoperable in general. It said that when the regulation, as it does, states 1) one can file a motion to reopen within 90 days of a decision, and 2) one cannot file a motion to reopen if actually deported, to resolve the obvious contradiction in the regulation and to maintain the regulation’s affect, the regulation should be read to mean that a motion to reopen can be filed within the 90 days of a decision regardless of whether the alien is deported or not. This would avoid the government’s racing to deport people within 90 days of a decision for the sole purpose of depriving them of the right to reopen.
The inapt citation to Reyes-Torres for the proposition that the departure bar is dead will result in many attorneys taking their clients down mistaken paths with falsely-elevated expectations.
That error aside, the Menendez-Gonzalez court then goes on to show that it is clearly in the “finality camp” when it comes to the struggle between abstract fairness and finality. Noteworthy is that Judge J. Clifford Wallace was one of the judges in Menendez-Gonzalez and wrote a pro-finality dissent in Reyes-Torres.
The court notes that the Board of Immigration Appeals may reopen a case when there are exceptional circumstances. The case came to the court of appeals two earlier times. The second time was for the Board of Immigration Appeals to clarify whether it was applying an exceptional circumstances standard or some other. The Board stated that it was applying an exceptional circumstances standard, and to the Menendez-Gonzalez panel, that settled it. The right standard was used to deny the motion to reopen, sayeth the BIA, and so it is. Any inquiry as to application of the standard, the court said, was not allowed, because of case law that says that an appellate court cannot decide what exceptional circumstances are – a line of agency cases of kooky reasoning about deciding about undefined terms and deference to agencies that one day they will have to be revisited.
On the third appeal to the Ninth Circuit, Mr. Menendez-Gonzalez vainly challenged the application of the non-reviewability standard noting that in 10 unpublished cases, the BIA reopened after vacated convictions and the BIA should be held to a standard of consistency. The Court of Appeals was unpersuaded, writing, “The citation by Menendez-Gonzalez to a relative handful of unpublished BIA decisions arriving at different conclusions does not establish a ‘settled pattern of adjudication’ or provide us with any meaningful standard to apply to limit the agency’s exercise of discretion.”
Suppose you knew ten realtors who got their licenses back and they won’t give you yours back?
I have blogged about the departure bar here. I noted its arbitrary application and non-application. When confronted with ten times that the BIA has reopened based on the vacating of an underlying conviction (in oral argument many more are alluded to), the Ninth Circuit does not show the slightest concern that what the BIA does on a Monday is sometimes different from what it does on a Tuesday. That should offend people’s sensibilities, either ethical or constitutional. “They are just unpublished decisions,” and “Oh well, shit happens,” should not be considered a satisfactory response. Posted July 28, 2019.