Expect a Tsunami of Remands after SCOTUS Decision

Deported Criminals Could Also Return

By Andrew R. Arthur on April 21, 2018

In an April 17, 2018 post, I detailed the findings of the Supreme Court in a decision issued on that date in Sessions v. Dimaya. In Dimaya, the Supreme Court had ruled that 18 U.S.C. § 16(b), as incorporated into the aggravated felony definition in section 101(a)(43)(F) of the Immigration and Nationality Act (INA) was unconstitutionally vague, affirming a decision of the Court of Appeals for the Ninth Circuit.

As I explained, unless or until Congress acts to plug the hole in the aggravated felony definition in the Immigration and Nationality Act (INA) created by the Supreme Court, many dangerous criminal aliens who would otherwise be removable from the United States will be allowed to remain in this country. This includes aliens who have been convicted of crimes of domestic violence, as I explained in an April 20, 2018 post. Needless to say, this will endanger the public safety generally, and their future victims in particular.

The scope of that decision is not strictly prospective, however. Instead, it will allow aliens who have already been ordered removed (including likely a number who have actually been removed from the United States, as I explain below) to request reopening and remands of their cases so that those cases can be dismissed.

The Board of Immigration Appeals (BIA) Practice Manual explains:

A motion to reopen asks the Board to reopen proceedings in which the Board has already rendered a decision in order to consider new facts or evidence in the case.

* * * *

A motion to remand seeks to return jurisdiction of a case pending before the Board to the Immigration Judge. Parties may, in appropriate circumstances, move to remand proceedings to the Immigration Judge to consider newly available evidence or newly acquired eligibility for relief.

Needless to say, the fact that an alien is no longer removable from the United States would be valid basis for a motion to reopen and remand. Cases involving the relevant provision will likely be remanded to the immigration court for termination.

The upshot of this is that many dangerous aliens who are now not otherwise removable from the United States will have the opportunity to continue to live here indefinitely. One former Office of Immigration Litigation (OIL) attorney with whom I spoke asserted: "We will not see a wave of remands, we will see a tsunami of remands."

It is doubtful that either the immigration court or U.S. Immigration and Customs Enforcement (ICE) capture statistics on the number of aliens who were ordered removed under the specific subsection that the Supreme Court ruled unconstitutional. I myself, however, issued a number of decisions that implicated this provision, and I can only imagine that my former colleagues on the immigration court have had similar experiences. For that reason, while I cannot quantify the number of criminal aliens who will be allowed to remain in the United States, I anticipate (like my friend, the former OIL attorney) that the number will be quite large.

Unfortunately, the number of criminal aliens who will benefit from the Supreme Court's decision will probably not be limited to those criminals who are still in the United States.

The regulation governing motions to reopen before the BIA makes clear that:

A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.

(Emphasis added). That regulation also provides that such motions must be filed "no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened, or on or before September 30, 1996, whichever is later," although the BIA may reopen any case on its own motion at any time.

Similar time, numerical, and post-departure limitations appear in the regulation governing motions to reopen before the immigration court, although again:

An Immigration Judge may upon his or her own motion at any time, or upon motion of the Service or the alien, reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is vested with the BIA.

While these regulations would appear to forestall most motions to reopen and remand made by criminal aliens who have already been physically removed from the United States (or who simply left), the law is not so simple.

The provision of the INA governing motions to reopen in removal proceedings, section 240(c)(7)(A) of the INA states:

In general.-An alien may file one motion to reopen proceedings under this section, except that this limitation shall not apply so as to prevent the filing of one motion to reopen described in subparagraph (C)(iv).

Section 240(c)(7)(C)(i) of the INA makes clear that such motions to reopen must be filed within 90 days of the final administrative order of removal, consistent with the regulations governing motions to reopen before the BIA and immigration court. The referenced exception in section 240(c)(7)(C)(iv) of the INA applies to applications for battered spouses, children, and parents.

Notably absent from this section of the INA, however, is the regulatory restrictions on motions to reopen made by aliens who have been removed from the United States.

At least one circuit court, the Court of Appeals for the Fourth Circuit, has held that this statute "clearly and unambiguously grants an alien the right to file one motion to reopen, regardless of whether he is present in the United States when the motions filed." Given this fact, it concludes that the regulatory post-departure bar to motions to reopen "lacks authority and is invalid."

Given this fact, it is reasonable to expect that aliens who have been removed in proceedings that occurred within the jurisdiction of the Fourth Circuit (the Baltimore, Arlington, and Charlotte Immigration Courts) and who have been removed from the United States on the aggravated felony ground of removal addressed in the Supreme Court's decision will move to reopen and remand their cases.

Even those aliens whose orders of removal were entered more than 90 days before the filing of those motions will likely request that the BIA or immigration court sua sponte reopen their cases. It remains to be seen how those motions will be handled, but it is likely that some judges, given the constitutional underpinning of the Supreme Court's decision, will reopen those cases on their own initiative. Whether the Department of Homeland Security allows those aliens to reenter the United States, however, is a different issue.

Further, and although no other circuit court has gone as far with respect to post-departure orders as the Fourth Circuit, expect challenges to be filed in those other circuits as well.

The eventual (if not inevitable) result, therefore, of the Supreme Court's decision in Dimaya will be not only more work for the BIA and immigration courts, but also the return of criminal aliens to the United States.

Again, however, Congress could still act to prevent this from occurring. It would need to amend section 240(c)(7) of the INA, to make it clear that the departure of an alien from the United States (either voluntarily or under an order of removal) bars reopening of removal proceedings. In fact, former section 106(c) of the INA provided that there was no review of an order of removal or of exclusion "by any court if the alien . . . has departed from the United States after the issuance of the order." When the INA was amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), however, that statutory bar was repealed, likely inadvertently, and no similar bar was included in the provision governing motions to reopen.

Congress must act quickly, however, on this fix, before dangerous aliens are allowed to reenter the United States.