Long Chen v. Immigration and Naturalization Service

United States Court of Appeals for the Ninth Circuit

Long Chen petitioned for judicial review of an order by the Board of Immigration Appeals (“BIA”) denying his motion to reopen removal proceedings that were held in his absence. His attorney told him to go home instead of attending the deportation hearing. Chen’s attorney did not inform the court of Chen’s absence. The court found that the BIA abused its discretion by finding that Chen’s absence, which was caused by ineffective assistance of counsel, is not an exceptional circumstance justifying the reopening of a deportation decision made in his absence. In re Grijalva Barrera, 21 I. & N Dec. 472, 473 (BIA 1996); Fajardo v. INS, 300 F.3d 1018, 1022 n.8 (9^th Cir. 2002). The court granted the petition and remanded the case to the BIA for consideration of the merits of Chen’s application.

Manuel Zazueta-Carrillo v. John D. Ashcroft, US Attorney General

United States Court of Appeals for the Ninth Circuit

The court is asked to decide when does the voluntary departure period begin to run. Does it begin when the Board of Immigration Appeals enters its order granting voluntary departure? Or does it begin when this court concludes their review of the BIA’s decision on an alien’s status? In Contreras-Aragon v. INS, 852 F.2d 1088, 1090 (9th Cir. 1988) (en banc), the court found that the voluntary departure period begins to run on the latter date. This decision overturns Contreras-Aragon holding that that after Congress’s changes to immigration law in 1996, the voluntary departure period begins when the BIA enters its order granting voluntary departure.

An Immigration Judge had ordered Manuel Zazueta-Carrillo, a native of Mexico, removed from the United States and then denied Zazueta-Carrillo application for cancellation of removal under 8 U.S.C. § 1229b. On July 20, 2001, the BIA affirmed the Immigration Judge’s order, and pursuant to 8 U.S.C. § 1229c, granted Zazueta-Carillo thirty days to depart the United States voluntarily, beginning on the date of its order. On October 2, 2001, seventy-four days after the BIA granted him thirty days to depart voluntarily, Zazueta-Carrillo petitioned the BIA to reopen proceedings to allow him to apply for adjustment of status because his wife had become a naturalized United States citizen. The BIA denied Zazueta-Carrillo’s petition on the ground that he had failed to depart the United States pursuant to the BIA’s grant of voluntary departure. Zazuetta-Carillo petitioned for review of the BIA’s denial of his motion to reopen his case for readjustment of status.

This court noted that Contreras-Aragon was decided in a different statutory context than that existing today. Congress enacting Illegal Immigration Reform and Immigrant Responsibility Act changed the landscape of immigration law and alleviated all four concerns that motivated the court in Contreras-Aragon. The court outlined that IIRIA: 1) abolished the courts authority to review discretionary grants and denials of voluntary departure. 8 U.S.C. § 1229c(f); 2) gives courts the jurisdiction to entertain a petition after the alien has departed. 8 U.S.C. § 1252(b)(3)(B); 3) granted an alien the right to petition the court for review after he has voluntarily departed. 4) eliminated automatic stays upon filing a petition.