(CN) – The 9th Circuit joined two other circuits in ruling that the Department of Homeland Security should not be able to unilaterally block a motion to reopen immigration proceedings.
The federal appeals court in San Francisco determined that the Board of Immigration Appeals (BIA) erred in ruling that Marta Ahmed, a citizen of Ethiopia, failed to prove the legitimacy of her marriage. The board had denied her motion to reopen based solely on government’s objection.
“Allowing the adversarial party to a proceeding to unilaterally block a motion, for any or no reason, deprives the BIA, and by extension this court, of any meaningful review,” Judge Dorothy Nelson wrote.
The court said Ahmed’s attorneys prevented her from reasonably presenting her case during asylum and withholding-of-removal proceedings. Ahmed’s first lawyer failed to file the motion to reopen in time and failed to inform Ahmed of the materials she needed to submit to prove the legitimacy of her marriage.
The BIA opposed a second motion when it was filed, stating that the government’s opposition would have mandated a denial.
“We hold that when the DHS opposes a motion to reopen for adjustment of status, the BIA may consider the objection, but may not deny the motion based solely on the fact of the DHS’s objection,” Nelson ruled.
The 2nd and 6th Circuits have similarly rejected the department’s exclusive authority to block motions to reopen immigration proceedings.