In July 2004, Petitioner in this case, then a green-card holder, returned to the United States and applied for admission as a lawful permanent resident alien. The Department of Homeland Security (DHS) denied his application for admission, explaining that Petitioner's state conviction for a ...
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In July 2004, Petitioner in this case, then a green-card holder, returned to the United States and applied for admission as a lawful permanent resident alien. The Department of Homeland Security (DHS) denied his application for admission, explaining that Petitioner's state conviction for a controlled-substance crime made him inadmissible. An Immigration Judge found Mr. Petitioner deportable, and DHS removed him on April 29, 2009. Six days later, Petitioner moved the state court to reopen his criminal proceedings because he had entered his guilty plea without counsel. On May 12, 2009, the state court set aside Petitioner's conviction.
On May 29, 2009, Petitioner filed a motion to reopen his removal proceedings with the Board of Immigration Appeals (BIA) because without his criminal conviction, he believed he should no longer be deportable. The BIA denied his motion, reasoning that, because Petitioner was no longer in the United States, it did not have jurisdiction to hear Petitioner's motion. The BIA relied on Matter of Armendarez-Mendez, 241. & N. Dec. 646 (B.I.A. 2008), which held that the "departure bar," 8 C.F.R. § 1003.2(d), divested the Board of ''jurisdiction'' to entertain motions to reopen filed by aliens who are abroad. The departure bar says that "[ a] motion to reopen ... shall not be made by ... a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States."
Petitioner appealed the denial of his motion to the Sixth Circuit Court of Appeals.
On February 3, 2011, in a published opinion authored by Judge Jeffrey S. Sutton, the Sixth Circuit found that the BIA's decision was incorrect and that immigrants like Petitioner have a right to reopen cases from outside the United States. The Court observed that other immigration law statutes, such as those adopted in the 1996 Immigration Act, do not support the BIA's reading of 8 C.F.R. § 1003.2(d) as preventing review of motions to reopen from outside of the country. Although "the agency is not required--by statute or this decision--to grant Petitioner's motion to reopen,...it is required---by both--to consider it."Xin Chen - 04/10/2011