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Closing an Immigration Case

Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)
(1) The primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.
(2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.

Court Finds Petitioner Who Voluntary Departed the U.S. Under Threat of Deportation Is Not Eligible for Cancellation of Removal

The Eighth Circuit denied the petition for review, holding that a failure to satisfy the warning requirements of 8 CFR §240.25 does not preclude a finding of voluntary departure under threat of deportation sufficient to break the 10-year period of continuous presence required to be eligible for cancellation of removal. The court thus found that the petitioner was not eligible for cancellation of removal under INA §240A(b), because he voluntary departed the United States under a threat of deportation in March 2001, thus breaking his continuous presence in the country.

Immigrant Children Entitled to Court Hearing

The Associated Press reports that the Ninth Circuit Court of Appeals ruled on Wednesday that two laws passed by Congress didn’t end the right to a bond hearing for unaccompanied immigrant children detained by federal authorities. The court said that immigrant children who cross the border without their parents have the right to a court hearing to challenge any decision to detain them instead of turning them over to family in the United States. The ruling is especially prescient since a reported tens of thousands of unaccompanied children fleeing gang and drug violence in Guatemala, Honduras, and El Salvador have entered the United States in recent years.

CA9 Finds Substantial Evidence Supported BIA’s Finding That Petitioner Was a “Habitual Drunkard”

The en banc court denied the petition for review, concluding that the petitioner was ineligible for cancellation of removal on the ground that he failed to establish good moral character because, during the requisite period, he had been a “habitual drunkard.” The court further held that the term “habitual drunkard” was not unconstitutionally vague, because it readily lends itself to an objective factual inquiry.

EOIR Issues Memorandum on Continuances

In a memorandum dated July 31, 2017, Chief Immigration Judge MaryBeth Keller reminds Immigration Judges that in all situations in which a continuance is granted at a hearing, they must make the reason(s) for the adjournment clear on the record by stating the reasons orally or by setting forth in writing the reason(s) in an order. Further, the memo states that “it is critically important that Immigration Judges use continuances appropriately and only where warranted for good cause or by authority established by case law.”

Thus, continuances are harder to obtain now in Immigration Court

NWIRP Wins Preliminary Injunction Against EOIR Cease-and-Desist Letter

Yesterday, the U.S. District Court for the Western District of Washington converted its temporary restraining order (TRO) into a preliminary injunction, which prohibits the enforcement of 8 CFR §1003.102(t) against Northwest Immigrant Rights Project (NWIRP) and other nonprofit organizations who self-identify and disclose their assistance on pro se filings. The court had issued a nationwide TRO on May 17, 2017, enjoining EOIR from enforcing a cease-and-desist letter ordering NWIRP not to provide immigrants with any legal assistance in connection with matters before EOIR without entering Form EOIR-28, and from issuing such letters to other organizations.

Court Finds Presumption Against Retroactive Legislation Bars Application of IIRAIRA to Petitioner’s Case

Where Congress had passed the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) after the petitioner had committed a drug offense but before his crime was adjudicated, the Second Circuit granted the petition for review and remanded, holding that because the petitioner had committed his drug offense prior to IIRAIRA’s passage, he should not have been forced to seek admission to the United States after his brief vacation to the Dominican Republic in 2007. The court further held that the BIA should evaluate the petitioner’s motions to reopen his removal proceedings and to stay his removal under the law in effect at the time of the commission of his 1990 drug offense.

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