Board of Immigration Appeals Rules Not to Reopen Old Deportation Cases

Written by on November 3, 2009 in Enforcement, Immigration Courts, Reform with 5 Comments

A decision by the Board of Immigration Appeals (BIA) last week provides yet more evidence that broken laws create broken government. By refusing to protect eligible applicants for adjustment of status from deportation, the Board eased the way for the Immigration and Customs Enforcement (ICE) to deport someone whose legitimate green card application is pending with United States Citizenship and Immigration Services (USCIS).

This BIA decision runs counter to several federal court rulings that immigrants in this situation are entitled to apply for adjustment of status. The American Immigration Council’s Legal Action Center litigated those cases and filed an Amicus Curiae (“Friend of the Court”) brief before the BIA. While the BIA’s decision directly affects only one person, Maria Yauri, of California, it sets a precedent that puts hundreds of people at risk of being deported before they can adjust to legal status.

What’s the issue? The BIA’s decision allows ICE to deport people at the same time their legitimate applications for adjustment of status are pending before USCIS. Ms. Yauri asked the BIA to reopen her old deportation case. Reopening the case would have protected her from deportation, but deportation would have meant automatic denial of her adjustment application. The BIA ruled on a technicality: it will not reopen old deportation orders in these cases because USCIS, not the BIA, is deciding the adjustment application. The BIA dismissed her concern about ICE deporting her with a one-sentence statement that could be viewed either as extremely naïve or cynically uncaring.

Ironically, DHS already granted Ms. Yauri’s adjustment application before the BIA issued this decision, mooting the case. The BIA should have declined to rule on it. But because of this decision, other adjustment applicants in Ms. Yauri’s situation can be deported. Deportation should not be a game of chance that depends upon the speed with which various federal agencies operate.

It makes no economic, practical, or moral sense for our government to deport parents and spouses of U.S. citizens who are eligible under our laws, who have already followed all the requirements, and who are waiting for the government to act. In these cases, Congress already has decree that these family members should remain. The immigration agencies should act to protect, rather than endanger, other immigrants in Maria Yauri’s situation.

Photo by jovike.

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  • Wholeheartedly agree! On a technical note, there is precedent for the BIA withdrawing precedent after the fact, upon learning that it did not have jurisdiction over the respondent. Perhaps the BIA could be prevailed upon to withdraw (or reconsider) this opinion?

  • Even more invidious is that this opinoin is PURE DICTA. There was no case in controversy. The alien had been adjusted two years before. I do not see how this decision passes the Attorney General’s smell test. It needs to be appealed to the AG.

  • trudy krasovic

    Thank you for this valuable information.

  • The decision also runs afoul of the Administrative Procedures Act which requires that the agency render decisions on cases before it. And runs afoul of an alien’s due process right to be heard on his or her case. ICE’s removal of these aliens, therefore, deprives them of their rights which are locked into position by the filing of their applications…but I guess that is an issue for the circuit courts on petition for review

  • Tiroteo

    sorry for the double post, but any changes to this?

    If the BIA cant reopen old deportation cases, then who can?

    correct me if im wrong! — dont they reopen your deportation if you get arrested in order to deport you? — so y cant they reopen it by request?