(CN) – The Board of Immigration Appeals can reconsider or reopen a case after an immigrant has been deported, the 7th Circuit ruled, addressing an issue that has divided the circuit courts.
Jose Concepcion Marin-Rodriguez, a Mexican citizen, entered the United States illegally in 1988 and lived there 2005, when he was convicted of using fraudulent documents to get a job.
He applied for amnesty, but was turned down because he failed to submit the necessary fingerprints for a criminal background check.
He later submitted fingerprints, and the Board of Immigration Appeals granted his motion for reconsideration.
But before immigration authorities could review his case, Marin-Rodriguez was deported to Mexico.
The Department of Homeland Security asked the board to withdraw the remand order, saying it lacked jurisdiction after deportation.
The board agreed and withdrew the remand order, relying on a statute which states that a motion for reconsideration following “any departure” from the United States – including deportation – “shall constitute a withdrawal of such motion.”
Chief Judge Frank Easterbrook said the statutory language is “strange phraseology” when applied to a deported immigrant.
“[I]t amounts to saying that, by putting an alien on a bus, the agency may ‘withdraw’ its adversary’s motion,” he wrote.
Whenever a departure is involuntary, the court ruled, the board can still review its decision.
The 7th Circuit joins the 6th Circuit, 9th Circuit and 4th Circuit in ruling that the board has jurisdiction despite an immigrant’s deportation. The 2nd Circuit, 3rd Circuit and 11th Circuit have found the opposite, setting the stage for a possible Supreme Court hearing.
Easterbrook granted Marin-Rodriguez’s petition for review and remanded, but noted that he “may not have much to gain — his conviction for immigration-related fraud may block adjustment of status.”