Wu v. Holder (7th Cir. June 8, 2009)
KANNE Easterbrook Williams
Wu was ordered excluded in 1992; he sought reopening in 2002 on grounds of a failure of notice. The IJ reopened, but only for failure to send notice of appeal rights. Wu would have been eligible for Cancellation of Removal or Suspension of Deportation; but there is no Suspension or Cancellation in exclusion proceedings. The Govt refused to "repaper" by serving an NTA on Wu; and apparently also refused to administratively close the case. The 7th cir denied the petition.
1. The CtApp rejected Wu's argument that IIRIRA applies to exclusion proceedings.
2. Under IIRIRA 309(c), the Govt has discretion to "repaper" - but the regulations they've been planning for 14 years are still not finalized. Wu didn't make any arguments about repapering until the reply brief, and didn't raise any arguments to the IJ or BIA. The CtApp suggested that the in absentia order (which had been reopened) was an "evididentiary hearing" which had eliminated the repapering option. Wu argued that the Govt had effectively repaper by not objecting to reopening; which the CtApp rejected.
[CR: It sounds like the case wasn't well-briefed. A better argument would be that the Govt can't pretermit the repapering request simply by not publishing final regs authorizing repapering.]