Nwaokolo v. INS, Seventh Circuit

Philomena Nwaokolo, a citizen of Nigeria, was granted voluntary departure in 1985 after being placed in deportation proceedings for working in violation of the terms of her visa. She did not leave the US. In 1996, at which point she had three US citizen children, she retained an attorney to help her remain in the US lawfully. She twice filed motions to reopen her case, both of which were denied. She filed a third motion, this time claiming that she and her US citizen daughter would be subject to female genital mutilation in Nigeria, and that the United Nations Convention Against Torture therefore prohibited deportation. The motion was again denied, but the Board of Immigration Appeals granted a stay of deportation. Shortly before the stay was to expire, she filed a fourth motion to reopen, based on the same ground but including a second US citizen daughter who was three years old. This motion was denied and the stay lifted. Nwaokolo appealed to the Seventh Circuit.

In order to obtain a stay of deportation, it must be shown that there is some likelihood that the petition for review will be granted on the merits and that irreparable harm will result if the stay is denied that outweighs any harm to the INS. The Seventh Circuit found that Nwaokolo would likely win her petition for review. At no time did the Board of Immigration Appeals address the fact that her US citizen children would have to go with her to Nigeria, nor did it address the harm that might result to her daughters. The court found that this failure could easily be considered an abuse of discretion, particularly since they could be forced to undergo female genital mutilation, which the court characterized as torture. The court further found that even if the Board had considered the impact on the older daughter, it did not consider the impact on the younger daughter, now almost four years old. The court found she would be unable to resist the procedure, and because of her age, would have to live with the threat of it for many years before she would be able to return to the US, the country of her citizenship.

Given the tremendous harm that could result if the stay of deportation is not granted, and the negligible harm granting a stay would cause the INS, as well as the public interest in not sending US citizen children to a place where they could be tortured, the court granted the stay and imposed a schedule for a hearing on the merits.

The court ordered the parties to specifically address two issues in preparation for the merits hearing, whether the Board must take into consideration the hardship to US citizen children in ruling on a motion to reopen, and whether the INS has an obligation to notify child welfare authorities when the deportation of a parent could place a US citizen child in danger.

The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/7th/022964p.pdf.

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Salta v. INS, Ninth Circuit

Regina Salta entered the US in 1985 on a student visa, but never attended classes. She remained in the US, and had two US citizen children. In 1999, she approached the INS and asked the agency to issue an Order to Show Cause so that she could apply for cancellation of removal. The order was issued, and a hearing scheduled for November 4, 1999. At the hearing, she was told that her file had not yet arrived at the court and that the hearing would be continued. In 2000, Salta was notified that a new hearing would be scheduled. The INS sent another letter, by regular mail, scheduling a hearing for August 29, 2000. Salta failed to appear at this hearing, and was ordered deported. Salta received a letter telling her to report for deportation, and then filed a motion to reopen the removal proceedings, saying that she had never received notice of the August hearing. The immigration judge denied the motion, finding that she did not present evidence to support the claim, and the Board of Immigration Appeals dismissed her appeal. Salta then appealed to the Ninth Circuit.

INS regulations previously required such notices to be sent by certified mail, but have been changed to allow them to be sent by regular mail. When service could only be by certified mail, courts, including the Ninth Circuit, routinely found that such service created a strong presumption that delivery had been made. Since the change, the Ninth Circuit has not addressed what constitutes proper service. Here, the court found that because when something is sent by regular mail there is no evidence of it having been sent or of delivery having been attempted, it was improper for the immigration judge to dismiss Salta’s motion to reopen. Salta had herself gone to the INS to be placed in proceedings, making it unlikely she would have received the hearing notice and not been present at the time scheduled. The court found that in this situation, a sworn affidavit saying no notice was received would be sufficient to rebut the presumption that the notice was delivered. While Salta did not submit an affidavit, the court found this failure reasonable given that the type of evidence that was required under existing precedent could not be produced in this case. Therefore, the case was remanded with instructions that Salta be granted a hearing to determine whether the motion to reopen should be granted.

The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/0171537p.pdf.