Weekly Updates: Apr 27, 2018

This week we had oral arguments in the travel ban case in the Supreme Court and a District Court’s decision to reinstate DACA in its entirety. I will not be blogging about either one of these decisions until they 1) come down; or 2) are final. It’s important to remember that the District Court stayed its decision reinstating DACA for 90 days to enable the Government to come up with a logical rationale for discontinuing the program. (I wish we could get these kinds of reprieves for our clients. You know, “Counsel, I don’t like your reasoning. Please come back in 90 days with a better legal argument.”). So, do not file new DACA cases and do not file for advanced parole for DACA recipients, because that holding is not yet in effect. However, we can still renew lapsing DACA applications under the other DACA decision. The Ninth Circuit did not issue any published immigration decisions or criminal decisions with potential immigration consequences this week. However, the BIA did issue a new decision holding that noncitizens who are subject to reinstatement of removal are ineligible for asylum and only qualify for withholding of removal or relief under the Convention Against Torture. The decision also holds that the government may file a Motion to Reconsider within the regulatory time period where the government believes that the Immigration Court erred in its decision.

Board of Immigration Appeals

A Noncitizen Subject to Reinstatement of Removal is Ineligible for Asylum; and, the Government has the Authority to File a Motion to Reconsider in Immigration Court

In decision that delved deeply into the regulations and into legislative history, the BIA held that a noncitizen who is subject to reinstatement of removal and who is in “withholding only” proceedings is ineligible for asylum. The BIA held that the government is not statutorily barred from filing Motions to Reconsider, and that the government’s motion was not subject to res judicata because the underlying case was not administratively final.

The noncitizen is a native and citizen of Guatemala. On August 6, 2013, she was removed from the United States. On August 10, 2013, she illegally reentered the United States. On August 15, 2013, DHS reinstated the prior removal order against her. However, she had a reasonable fear interview and the asylum officer found that she had a reasonable fear of persecution. The asylum officer referred the case to the Immigration Court. On August 1, 2016, the IJ granted the noncitizen asylum.

On August 31, 2016, DHS filed a timely Motion to Reconsider with the IJ arguing that an intervening Ninth Circuit decision held that the noncitizen was ineligible for asylum and only qualified for withholding of removal. Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016), cert. denied 138 S.Ct. 737 (2018). (The Ninth Circuit found that the regulation promulgated by the Attorney General limiting the relief available to noncitizens in reinstatement proceedings to withholding of removal only, was a reasonable interpretation of the statute and was subject to Chevron deference). Perez-Guzman came down on August 31, 2016. Somehow, the government managed to file a Motion to Reconsider with the Immigration Court that same day! After the government filed its motion, the noncitizen argued that the government does not have the statutory authority under INA § 240(c)(6) to file a Motion to Reconsider. The IJ agreed with the noncitizen and denied the Motion to Reconsider. The IJ held that 1) the INA does not confer upon the government the ability to file a Motion to Reconsider; and 2) the government’s motion was barred by res judicata.

The BIA did a deep dive into the regulations, statute, the legislative history of the statute, and the INS responses to the comments during the notice and comment rule-making period regarding the regulations. The statute at issue is 240(c)(6) and limits the noncitizen to filing only one Motion to Reconsider. The BIA found that the statute is silent as to the government’s ability to file a Motion to Reconsider but, that did not mean that the government could not file a Motion to Reconsider. In support of its position, the BIA looked at the legislative history and concluded that the purpose of the statute was to streamline procedures for removing undocumented immigrants. The BIA held the government was statutorily able to file Motions to Reconsider. It further noted that noncitizens were limited to filing only one Motion to Reconsider. It did not determine whether the government could file more than one Motion to Reconsider. In support of its position, the BIA also looked to the comments on the implementing regulation and found that while several commenters argued that the same time and numerical limitations should apply to all parties for Motions to Reconsider, those limitations were only imposed on the noncitizens, not the government.

The noncitizen here also argued that government’s arguments were foreclosed under res judicata. The BIA held that because the Motion to Reconsider was timely filed, and the administrative process was not complete, because Motions to Reconsider may be filed within 30 days of the Immigration Court’s decision, that the case was not administratively final. Thus, res judicata did not apply. The BIA remanded the case to allow the noncitizen to apply for withholding of removal.

Matter of L-M-P-, 27 I.&N. Dec. 265 (BIA 2018).