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En Banc Ninth Circuit Holds IJ’s Duty is Limited to Informing an Alien of Reasonable Possibility of Relief.

By immigrationprof

U.S. v. Lopez-Velazquez No. 07-30241

U.S. Court of Appeals for the Ninth Circuit

2010 U.S. App. LEXIS 24889 (December 7, 2010)

En Banc court held that

IJ’s duty is limited to informing an alien of a reasonable possibility that the alien is eligible for relief at the time of the hearing. While there may be narrow exceptions where an IJ has a duty to inform an alien of relief for which the alien will become eligible imminently, or where subsequent precedent renders a deportation order invalid, those circumstances are not present here.

 

 

 

Factually, Mr. Edmundo Lopez-Velasquez immigrated through the Special Agricultural Worker (SAW) program. He obtained Lawful Permanent Resident (LPR) status December 1990. Three years later he was convicted of a drug offence and sentenced to three years. In February 1994 he appeared before an Immigration Judge (IJ) without cousel at a group removal proceeding. He conceded removability and did not request relief. The trial attorney was asked and answered that there did not appear to be any grounds for relief. Mr. Lopez-Velasquez was ordered removed, and along with the other defendants, waived appeal. In 2003 Mr. Lopez-Velasquez was charged with illegal reentry. Mr. Lopez-Velasquez filed a motion to reopen his 1994 proceedings arguing that he was denied due process because the IJ did not inform him about the possibility for relief under Sec. 212(c). The IJ denied the motion and reinstated the removal order instead. Mr. Lopez-Velasquez was also prosecuted for illegal re-entry under 8 USC 1326. He moved to remove the indictment on the same basis. The district court, and a three-judge circuit pannel agreed with Mr. Lopez-Velasquez. The Ninth Circuit seating en banc, however, reversed.

Under the law at the time of the deportation hearing, the seven-year domicile requirement for 212(c) began to accumulate when the person was granted LPR status. Mr. Lopez-Velasquez had been an LPR for only three years. Moreover, his argument that he should be credited the time he spent awaiting the SAW grant, only became colorable the next year when the BIA adopted the Ninth Circuit’s Ortega de Robles 58 F3d 1355 (1995) decisiont that credits 245A applicants with the time spent as temporary lawful permanent residents. Even if the en banc court would have accepted the premise that the seven-year presence clock for SAW started upon application, Mr. Lopez-Velasquez would have been eight months short at the time of the hearing. Allthough the time does continue to accumulate during appeals, there was no indication that Mr. Lopez-Velasquez had a substantive basis for puruing an appeal in 1994.

EQ