Due Process Violation?

I had a fascinating conversation this week with a fellow immigration attorney, who had a very interesting case in Buffalo, New York. His client, who was in "deportation proceedings" (as they were called prior to 1996) was ordered deported by an immigration judge in his absence sometime in 1994. Apparently, he had a court date that he missed, and under the immigration laws, an immigration judge had the authority to order deportation without the presence of the foreign national in court. When the foreign national discovered the deportation lawyer, he hired a lawyer, who tried to have the case "reopened" on the basis that his client never received the notice of his hearing date. Under the law, such a motion was permissible. Also, filing such a motion (typically called "motion to reopen and rescind an in absentia order") did not require a showing that the foreign national was or is eligible for a form of relief from deportation, or that he would ultimately win a case before an immigration judge. All that is required is a showing of lack of notice of hearing (actual or constructive).

The immigration judge who ordered the deportation in 1994 denied the motion to reopen, claiming that there was sufficient evidence of notice of hearing. The Board of Immigration Appeals (the highest administrative immigration tribunal) denied the appeal.

Then, when the foreign national had accumulated more favorable equities in the United States, in 2007, the lawyer obtain the consent of the Department of Homeland Security lawyer, who, in writing, said that she would not object to a motion to reopen the old deportation case. When the foreign national's lawyer presented all this to the immigration judge, the judge again denied the motion to reopen. Typically, when both parties ask the Court to reopen a case (through a "joint motion to reopen"), the immigration judge usually reopens the matter. However, here, the judge denied reopening and went through a whole list of reasons why he would ultimately deny "adjustment of status" (a process by which the foreign national would obtain lawful permanent residency in the United States, through marriage or employment). Because he felt that he would deny the ultimate relief sought, there was no reason to reopen.

Again, the foreign national appealed to the Board of Immigration Appeals, and once again, he lost on appeal.

The lawyer then made a prudent move, and decided that he would file a new motion with the immigration judge, addressing all of his concerns in his previous denial. Of course, the logic behind this was to show to the immigration judge that his client was likely to prevail on the merits of his adjustment of status application, and that he was not legally barred from seeking adjustment of status. Again, the Department of Homeland Security lawyer, in writing, said that she would not object to the Court's reopening the case.

Then things took an interesting turn. Without any reasonable explanation (that we know of), another immigration judge sitting in Buffalo, NY reviewed the motion, and denied it on the basis that the foreign national had notice of his 1994 hearing date, and therefore he did not deserve to have his case reopened.

Now, the lawyer is in the process of preparing another appeal, and then considering going to the United States Court of Appeals for the Second Circuit if the Board of Immigration Appeals denies the appeal.

Since the REAL ID Act came out in 2005, challenging an immigration case in federal court has become more challenging. Only constitutional and legal claims can be brought in federal courts (along with claims of torture if deported to the foreign national's native country). Discretionary (meaning, things that an immigration judge or the Board of Immigration Appeals decided as a matter of their opinion after balancing all the positive and negative aspects of a case), cannot be challenged in federal courts. This means more and more foreign nationals are being deprived of opportunities to have a higher federal court review often-erroneous and irrational decisions of immigration judges and the Board of Immigration Appeals. In the situation mentioned above, there is no reason why another judge would take over deciding the motion: the original judge is still there; he did not "recuse" himself from the case; he was not on an extended vacation or absence. Indeed, the lawyer and the foreign national had a reasonable expectation that the new motion would be reviewed by the original judge who entered the deportation order.

This situation isn't only outrageous, but unfortunately, things like this are probably happening all over the country and many foreign nationals are being deported without having a fair opportunity to be heard in Court. Our Constitution provides due process rights and immigrants are regularly being deprived of it.

-Ruchi Thaker