During the holidays, the Government submitted a motion to dismiss on one of my petitions for review that was pending in the U.S. Court of Appeals for the Second Circuit. The Government argued that my client’s case should be dismissed because the court did not have jurisdiction. Litigating petitions for review is very difficult. One of the reasons for this is that not all cases that are lost at the Board of Immigration Appeals can be challenged in federal court as a petition for review. There are many complicated rules about what kinds of immigration cases that the court of appeals can hear in a petition for review. Normally, discretionary decisions of the Board of Immigration Appeals cannot be challenged in a petition for review. The Government argued that I was challenging a discretionary decision, so that the case should be dismissed. However, there is an exception to that rule, which is that even if a decision is discretionary, the court can still hear a challenge to that decision if the argument is based upon a question of law or the constitution. I argued that the Board’s decision was not discretionary and even if it was, my client’s case involved both a question of law and the constitution. Earlier this week, the Second Circuit issued a short summary order denying the motion to dismiss and agreeing with me. Now my client will be able to continue his fight to stay in the United States.
Archives for March 2013
I’m on the Amicus Committee for the American Immigration Lawyers Association (AILA). When there are cases involving immigration law with important issues, AILA likes to be heard on these issues. The Amicus Committee writes briefs for AILA on these important issues. I recently filed an amicus brief for AILA in a case before the Board of Immigration Appeals. The Board requested briefing from AILA about whether or not the Board should reconsider its decision in Matter of Acosta-Hidalgo, 24 I. & N. Dec. 586 (BIA 2007). In Matter of Acosta-Hidalgo, the Board held that a motion to terminate removal proceedings to apply for naturalization pursuant to 8 C.F.R. § 1239.2(f) requires a statement from either a U.S. District Court or the U.S. Citizenship and Immigration Service (CIS) that the individual is eligible for naturalization. Due to a technicality in the immigration laws, once someone is placed in removal proceedings, neither a U.S. District Court or CIS may consider a naturalization application. Thus, under the Board’s interpretation of the regulation, no one can ever have their proceedings terminated. In the brief, I argued that an Immigration Judge has the power to make all the determinations that are necessary for termination for naturalization pursuant to 8 C.F.R. § 1239.2(f). Immigration attorneys Russell R. Abrutyn and Vikram K. Badrinath worked with me on the brief. If we are successful, this case could be very important because it would give people facing deportation an additional way to fight their case.
The immigration club at Cardozo Law School, For Immigration Rights and Equality (“FIRE”), invited me to speak today at a luncheon. I spoke about the mediation process for petitions for review at the U.S. Court of Appeals for the Second Circuit. Second Circuit Staff Attorney Vidya Kurella also spoke at the luncheon. I always enjoy speaking to law students about immigration law and I hope that what I said today will encourage them to become immigration lawyers.