Posted by Norka M. Schell
The process of the U.S. Government to remove aliens that are viewed as having no right to remain in the United States is in a state of flux.
Generally, a lawful permanent resident ( "LPR") is placed in removal proceedings when he is convicted of a theft offense or is convicted of a crime of violence where the sentence imposed was at least 1 year of imprisonment aggravated felony. When this is case, an immigration judge ("IJ") will first determined whether the LPR now referred to as "Respondent" is subject to removal on the ground of the criminal conviction. Assuming that Respondent's conviction has been vacated or his sentence has been reduced to less than 1 year, now the IJ will find that Respondent is not removable and the proceedings will be terminated, and the Respondent will retain his or her LPR status.
If Respondent were removed from the United States prior to vacate his underlying conviction, he would have been prevented from presenting new evidence in his removal case - evidence that potentially could change the outcome - because he were outside of the United States.
In Reyes-Torres v. Holder, the United States Court of Appeals for the Ninth Circuit recently reversed the BIA decision and granted Mr. Reyes-Torres the right to reopen his case from outside of the United States.
This is the case of Reyes-Torres. Reyes-Torres is a native and citizen of Mexico who obtained lawful permanent residence status (LPR) in 1964. Since then he has been convicted of two crimes. In 1984, Reyes-Torres was convicted of transporting aliens in violation of 8 U.S.C. section 2324(a)(2). In 2007, he was convicted of possession of a controlled substance in violation of California Health and Safety Code Section 11377(a).
The Department of Homeland Security ("DHS") served Reyes-Torres with a Notice to Appear ("NTA") in 2008, charging him with being removable pursuant to: (1) 8 U.S.C. Section 1227(a)(2)(A)(iii) as an alien who has been convicted of an aggravated felony; and (2) 8 U.S.C. Section 1227(a)(2)(B)(i) as an alien who has been convicted of a law relating to a controlled substance. At a hearing before an immigration judge ("IJ"), Reyes-Torres admitted the factual allegations in the NTA, contested removability on the basis of the aggravated felony charge, and conceded removability on the basis of his controlled substance violation. He also stated his intention to seek relief from deportation in the form of cancellation of removal. Howeverf, cancellation of removal relief is unavailable to permanent residents who have been convicted of any aggravated felony. 8 U.S.C. Section 1229b(a)(3).
The IJ issued a written decision finding that because Reyes-Torres's alien transportation conviction constituted an aggravated felony, he was ineligible for relief in the form of cancellation of removal. IJ also ordered him removed to Mexico. Reyes-Torres appealed to the BIA but and the the IJ's decision on September 26, 2008 was upheld.
Reyes-Torres was removed from the United States on October 3, 2008. On October 22, 2008, a California Superior Court judge granted Reyes-Torres's motion to withdraw his guilty plea to the controlled substance charge resulting in his 2007 controlled substance conviction. The judge granted the motion on the ground that Reyes-Torres was not adequately informed of the immigration consequences of the plea. Reyes-Torres now has a clean criminal record, not only under the state law but for immigration purpose as well. However, vacate of the conviction would have no immediate effect on his immigration status. Reyes-Torres is still a former permanent resident who has been removed as an "aggravated felon." He no longer has a green card, or any other status that would permit him to return to the United States.
Procedurally, the only way to turn back the clock and restore Reyes-Torres's LPR would be to seek reopening of the removal proceeding from the IJ who ordered him removed or from BIA if it affirmed the removal order. However, federal appellant court have prevented non citizens from presenting new evidence in their cases because they were outside the United States.
On October 27, 2008, Reyes-Torres filed with the BIA a motion to reconsider and reopen proceedings based on the new evidence of the vacated conviction.
On December 22, 2008, the BIA dismissed Reyes-Torres's motion to reopen and reconsider, concluding that it lacked jurisdiction because Reyes-Torres has been removed from the United States prior to its filing. The BIA cited the "departure bar" in 8 C.F. R. Section 1003.2(d) for this proposition.
Reyes-Torres timely petitioned for review of both the BIA's September 26, 2008 decision dismissing his appeal and the BIA's December 22, 2008 decision dismissing his motion to reconsider and reopen.
In its review, the United States Court of Appeals for the Ninth Circuit did not find necessary to decide whether Reyes-Torres's 1984 conviction constituted an aggravated felony for removal purposes because the Anti-Drug Abuse Act of 1988 ("ADAA") which created the category of crimes denominated "aggravated felonies" and provided that aliens convicted of such "aggravated felonies" were subjected to deportation - was enacted November 18, 1988. Since, Reyes-Torres's conviction for alien transportation occurred prior to November 18, 1988, it cannot constitute a removable aggravated felony.
The 2007 guilty pleas has since been vacated and can no longer serve as a basis for removability.
The United States Court of Appeals for the Ninth Circuit granted Reyes-Torres the petition for review and recommend this case to the BIA for further action consistent with its opinion.
_____________________________________________________________________________
Rachel E. Rosenbloom, Northeastern University - School of Law-
American Immigration Council - Court Protects Immigrant's Rights to Reopen Cases from the Outside the US
Ruben Reyes-Torres, United States Court of Appeal for the Ninth Circuit
The process of the U.S. Government to remove aliens that are viewed as having no right to remain in the United States is in a state of flux.
Generally, a lawful permanent resident ( "LPR") is placed in removal proceedings when he is convicted of a theft offense or is convicted of a crime of violence where the sentence imposed was at least 1 year of imprisonment aggravated felony. When this is case, an immigration judge ("IJ") will first determined whether the LPR now referred to as "Respondent" is subject to removal on the ground of the criminal conviction. Assuming that Respondent's conviction has been vacated or his sentence has been reduced to less than 1 year, now the IJ will find that Respondent is not removable and the proceedings will be terminated, and the Respondent will retain his or her LPR status.
If Respondent were removed from the United States prior to vacate his underlying conviction, he would have been prevented from presenting new evidence in his removal case - evidence that potentially could change the outcome - because he were outside of the United States.
In Reyes-Torres v. Holder, the United States Court of Appeals for the Ninth Circuit recently reversed the BIA decision and granted Mr. Reyes-Torres the right to reopen his case from outside of the United States.
This is the case of Reyes-Torres. Reyes-Torres is a native and citizen of Mexico who obtained lawful permanent residence status (LPR) in 1964. Since then he has been convicted of two crimes. In 1984, Reyes-Torres was convicted of transporting aliens in violation of 8 U.S.C. section 2324(a)(2). In 2007, he was convicted of possession of a controlled substance in violation of California Health and Safety Code Section 11377(a).
The Department of Homeland Security ("DHS") served Reyes-Torres with a Notice to Appear ("NTA") in 2008, charging him with being removable pursuant to: (1) 8 U.S.C. Section 1227(a)(2)(A)(iii) as an alien who has been convicted of an aggravated felony; and (2) 8 U.S.C. Section 1227(a)(2)(B)(i) as an alien who has been convicted of a law relating to a controlled substance. At a hearing before an immigration judge ("IJ"), Reyes-Torres admitted the factual allegations in the NTA, contested removability on the basis of the aggravated felony charge, and conceded removability on the basis of his controlled substance violation. He also stated his intention to seek relief from deportation in the form of cancellation of removal. Howeverf, cancellation of removal relief is unavailable to permanent residents who have been convicted of any aggravated felony. 8 U.S.C. Section 1229b(a)(3).
The IJ issued a written decision finding that because Reyes-Torres's alien transportation conviction constituted an aggravated felony, he was ineligible for relief in the form of cancellation of removal. IJ also ordered him removed to Mexico. Reyes-Torres appealed to the BIA but and the the IJ's decision on September 26, 2008 was upheld.
Reyes-Torres was removed from the United States on October 3, 2008. On October 22, 2008, a California Superior Court judge granted Reyes-Torres's motion to withdraw his guilty plea to the controlled substance charge resulting in his 2007 controlled substance conviction. The judge granted the motion on the ground that Reyes-Torres was not adequately informed of the immigration consequences of the plea. Reyes-Torres now has a clean criminal record, not only under the state law but for immigration purpose as well. However, vacate of the conviction would have no immediate effect on his immigration status. Reyes-Torres is still a former permanent resident who has been removed as an "aggravated felon." He no longer has a green card, or any other status that would permit him to return to the United States.
Procedurally, the only way to turn back the clock and restore Reyes-Torres's LPR would be to seek reopening of the removal proceeding from the IJ who ordered him removed or from BIA if it affirmed the removal order. However, federal appellant court have prevented non citizens from presenting new evidence in their cases because they were outside the United States.
On October 27, 2008, Reyes-Torres filed with the BIA a motion to reconsider and reopen proceedings based on the new evidence of the vacated conviction.
On December 22, 2008, the BIA dismissed Reyes-Torres's motion to reopen and reconsider, concluding that it lacked jurisdiction because Reyes-Torres has been removed from the United States prior to its filing. The BIA cited the "departure bar" in 8 C.F. R. Section 1003.2(d) for this proposition.
Reyes-Torres timely petitioned for review of both the BIA's September 26, 2008 decision dismissing his appeal and the BIA's December 22, 2008 decision dismissing his motion to reconsider and reopen.
In its review, the United States Court of Appeals for the Ninth Circuit did not find necessary to decide whether Reyes-Torres's 1984 conviction constituted an aggravated felony for removal purposes because the Anti-Drug Abuse Act of 1988 ("ADAA") which created the category of crimes denominated "aggravated felonies" and provided that aliens convicted of such "aggravated felonies" were subjected to deportation - was enacted November 18, 1988. Since, Reyes-Torres's conviction for alien transportation occurred prior to November 18, 1988, it cannot constitute a removable aggravated felony.
The 2007 guilty pleas has since been vacated and can no longer serve as a basis for removability.
The United States Court of Appeals for the Ninth Circuit granted Reyes-Torres the petition for review and recommend this case to the BIA for further action consistent with its opinion.
_____________________________________________________________________________
Rachel E. Rosenbloom, Northeastern University - School of Law-
American Immigration Council - Court Protects Immigrant's Rights to Reopen Cases from the Outside the US
Ruben Reyes-Torres, United States Court of Appeal for the Ninth Circuit
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