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May 17, 2012


By: Norka M. Schell, Attorney-at-Law

The Board of Immigration Appeals denied Jean Marc Nken's petition to reopen his case regarding his deportation. He appealed arguing that the Board of Immigration Appeals abused its discretion in denying  his motion and should have used its sua sponte power to reopen his proceedings. On appeal, the U.S. Court of Appeals for the Fourth Circuit held that the Board of Immigration Appeals did not abused its discretion. Thereafter, the Supreme Court granted Mr. Nken's motion for a stay of his removal until further proceeding by the Court. 

In Nken v. Holder, 556 U.S. 418 (2009),the Supreme Court, in considering an alien's request for a stay of removal pending adjudication of his petition for review, said, “Although removal is a serious burden for many aliens, that burden alone cannot constitute the requisite irreparable injury. An alien who has been removed may continue to pursue a petition for review, and those aliens who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal.” In so stating, Justice John G. Roberts, Jr., the author of the opinion, was relying on the following statement made by the Office of the Solicitor General (OSG) in its appellate brief on behalf of the respondent in Nken.

In the ordinary case, an alien need not remain in the United States in order to pursue a legal or constitutional claim or benefit from a favorable judicial ruling. The court's review is based on the administrative record, see 8 U.S.C. 1252(b)(4)(A), and written legal briefs, 8 U.S.C. 1252(b)(3)(C), rather than in-person testimony. By policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens' return to the United States by parole under 8 U.S.C. 1182(d)(5) if necessary, and according them the status they had at the time of removal. Read more www.supremecourt.gov/opinions/08pdf/08-681.pdf

Law Offices of Norka M. Schell, LLC handle litigation. If you or a loved one is facing deportation or removal proceedings, please contact an experienced NY attorney, at (212) 564-1589.