The Right to Reopen an Adverse Decision From Abroad

The U.S. is a nation of laws. Our highest law is the U.S. Constitution, defining rights of citizens, of those who are present within our jurisdiction, and controlling issues of national importance such as the making of treaties, protection of our borders, and immigration.

We know that local laws differ from state to state and city to city. However, federal law is supposed to be applied equally in all parts of the U.S. Unfortunately, this does not always follow because courts may, and do, interpret laws differently, resulting in dissimilar outcomes. Likewise, because many sections of immigration law are based on discretion, and impacted by policy, immigration officers and judges who view and weigh the facts of a case can have differing perspectives, resulting in varying decisions, even in cases that may appear to be the same.

On January 30, 2012, in line with issues of immigration, the Tenth Circuit Court of Appeals in Contreras v. Holder joined a majority of other circuits, declaring that a removal (formerly deportation) order may be challenged from abroad by one who has been removed from the U.S. There are several reasons for this perspective. First, the government's action in removing the alien within days after the decision of the Immigration Judge (IJ) prevented the filing of a Motion to Reopen (MTR) which has the purpose of reviewing a decision which is claimed to be defective. A window of 90 days is allowed for filing the MTR. Second, the Tenth Circuit agreed with the majority of its sister circuits that the challenged rule limiting review through an MTR exceeded the scope of the Congressional mandate. The new ruling is now followed in Colorado, Kansas, Oklahoma, New Mexico, Utah, and Wyoming. I do not want to omit my Ninth Circuit which so ruled earlier. Its territory includes California. See,

It needs to be understood that only Congress may legislate and make laws. It is then left to an administrative or executive agency to write its own regulations interpreting the law, with the goal of an orderly and efficient implementation of Congressional intent. At the same time, any regulation so written must not exceed the scope of the statute or limit the rights guaranteed by it. In the field of immigration, the Department of Homeland Security (DHS) has responsibility for writing such regulations.

The law in question, 8 U.S.C. §1229a(c)(7)(A), guarantees the right to review by stating that "[a]n alien may file one motion to reopen proceedings." The law does not say that such an alien must be in the U.S. in order to file the MTR. Yet, DHS regulations at 8 C.F.R. § 1003.2(d) do not allow an MTR when the alien is outside the U.S. Contreras v. Holder declared that the "...regulation permissibly interferes with Congress' clear intent to afford each noncitizen a statutory right to pursue a motion to reopen..."

Of course an MTR must meet other requirements, including that (1) it must be filed timely; (2) only one MTR may be filed per case; and (3) if it is based on error or omission of prior ineffective counsel, it usually requires (a) filing a complaint against that attorney with the state bar and (b) proving that prejudice occurred as a result of the ineffective representation.

In the case of Mr. Contreras, he explained that his attorney committed a series of errors and omissions both before the IJ and the BIA. Specifically, his attorney did not file for relief of cancellation of removal, and did not provide the government attorney with a copy of documents he filed with the IJ, resulting in their exclusion as evidence. At the BIA level the attorney did not file an appellate brief. It is understandable how these omissions prejudiced the outcome of his case, resulting in the ultimate penalty-- his removal from the U.S.

Since the decision is a major change in case law, those who are outside the U.S. and whose negative decisions were made in the 10th Circuit may reap the privilege of filing an MTR previously denied them, and may do so if they file within 90 days from January 30, 2012. Contreras v. Holder is a tribute to due process and fair play under the U.S. Constitution.

Content concerning legal matters is for informational purposes only, and should not be relied upon in making legal decisions or assessing your legal risks. Always consult a licensed attorney in the appropriate jurisdiction before taking any course of action that may affect your legal rights.