Colmenares Carpio v. Holder (10th Cir., January 12, 2010)

HENRY, Murphy, Tymkovich

Read the opinion here.

N-A-M v. Holder (10th Cir., November 20, 2009)

Henry, Murphy, Tymkovich

Read the opinion here.

Mendiola v. Holder, No. 08-9565 (10^th Cir. Oct. 28, 2009)

Petitioner Eddie Mendiola is a Peruvian citizen who became a lawful permanent resident of the U.S. in 1989. In 2004, the Department of Homeland Security commenced removal proceedings against him, as a result of, among other things, two felony convictions for possession of steroids. The Immigration Judge ordered him removed and the Board of Immigration Appeals affirmed that decision; a petition for review was denied by the 10^th Circuit. In March 2005, while the petition was pending, petitioner was removed to Peru. He then returned illegally and was detained. In 2007, while in custody, petitioner filed a motion to reopen with the BIA. This motion was denied as jurisdictionally barred and untimely.  On appeal to the 10^th Circuit, the BIA decision was affirmed.

Petitioner, after obtaining new counsel, filed a second motion to reopen with the BIA, arguing ineffective assistance of counsel and that his second possession conviction had been reduced to a misdemeanor. Once again, the BIA denied the motion, restating that it lacked jurisdiction and the motion was untimely. It also noted that according to statute, an alien may only file one motion to reopen.

At appeal, the issue was framed as whether BIA is properly deprived of jurisdiction to entertain a motion to reopen by 8 C.F.R. 1003.23(b)(1). This section reads, as quoted in the opinion:

“A motion to reopen or a motion to reconsider [before the BIA] 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.”

The Court began by recounting the legislative and regulatory history of the post-departure bar. In September 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which repealed judicial post-departure review first instituted by the Attorney General in 1952, but also instituted numerical and time limits on motions to reopen before an Immigration Judge and BIA. The next year, the Attorney General issued new regulations, which retained the post-departure bar. The 10^th Circuit concluded in Rosillo-Puga v. Holder, a case decided after briefing in the instant case, that the regulatory post-departure bar is a valid exercise of the Attorney General’s rule-making power, and does not contravene 8 U.S.C. 1229a(c)(7), which grants an alien the right to file one motion within 90 days. (It should be noted that, according to the instant decision, the 4^th Circuit has come to the opposite conclusion, concluding that the statute unambiguously provides all aliens with the right to file one motion to reopen within the time limit, and that the regulatory post-departure bar conflicts with the statute and is invalid.)

The Court found that the language of 1003.23(b)(1) mirrored the statutory language at issue in Rosillo-Puga. Relying on that case’s precedent, and stressing stare decisis, the Court reasserted the conclusion that “Congress’s provision for one motion to reopen within 90 days of removal in those statutory subsections does not alter the valid continued operation of the regulatory post-departure bar to motions to reopen.” Because it found that the BIA’s jurisdiction had been divested by the post-departure bar, the Court did not need to reach the issue of whether equity would require a tolling of the time and numerical limitation as a result of ineffective assistance.

Read opinion here (PDF).

Marquez Garcia v.  Holder, No. 08-9579 (10^th Cir., October 27, 2009)

The focus of this case is on an ambiguous record and the burden on an alien to prove that he has not committed a crime of moral turpitude. In the instant case, the petitioner, a native of El Salvador who entered the U.S. illegally in 1997, had pled guilty to third-degree assault in Colorado in 2003.

An alien who commits a “crime of moral turpitude” is ineligible for discretionary relief such as cancellation of removal or temporary protected status. Marquez, as he was referred to in the opinion, entered his plea on a poorly translated Spanish form, and as a result, the record was unclear on whether he was pleading guilty to knowingly or recklessly causing bodily injury. This component is critical in determining whether a crime of moral turpitude has been committed.

Both the government and petitioner conceded that the record was inconclusive regarding intent, and both parties claimed that this ambiguity favored them. The court addressed the shifting burden in a removal case. Where a lawfully admitted alien is charged with removability as a result of a conviction, the government must prove, by clear and convincing evidence, that the alien is removable. In the instant case, though, removability is conceded by the petitioner, and the burden therefore shifts to him “to prove the absence of any impediment to discretionary relief.” The Court held that, despite the record’s ambiguity, Marquez-Garcia had not proven he was eligible for discretionary relief. Despite the fact that the record was ambiguous through no fault of his own, Marquez had failed to meet his burden, and the court denied his petition.

Read opinion here.