8th CIRCUIT COURT OF APPEALS REMANDS TO BIA THE CASE OF A KENYAN ORDERED BY IJ TO VOLUNTARILY DEPART IN 2011

My office was hired in mid 2011 to pursue a motion to reopen (MTR) before the Immigration Court, by a citizen an national of Kenya who had been ordered to voluntarily depart the United States by an Immigration Judge in May of 2011.  Our MTR highlighted certain "changed circumstances" and conditions in Kenya which we believed warranted reopening.

Our MTR was denied by the IJ in February of 2012, citing a litany of what we believed were impermissibly speculative and conjectural reasons for the denial.  Thus, we timely appealed to the BIA, ultimately briefing all of the reasons why the IJ had erred and why the matter should have been reopened and why it should be remanded to the IJ.

In April of 2014, the BIA denied our appeal, sidestepping most of our contentions of error against the IJ and fashioned a new procedural reason for denial, coupled with its impression that our client had set forth "changed personal circumstances," rather than "changed country conditions," to support the MTR.

We then timely appealed via Petition for Review to the 8th Circuit Court of appeals which is the Circuit Court with jurisdiction over cases arising in the immigration court in which this particular case was litigated. In a 47 page brief before to the 8th Circuit, we carefully parsed the alleged procedural error (showing that the BIA had previously decided a substantially similar issue in another of its cases, Matter of J-G-, 26 I&N Dec. 161 (BIA 2013) in much the way we were arguing and in direct conflict with the manner in which the BIA had decided our clients matter).  We further argued that in their "changed personal circumstances" verses "changed country conditions" analysis, the BIA failed to consider all of the factors presented by the alien, and distorted important aspects of the claim(s) in violation of Felke v. INS, 118 F.3d 594, 597-598 (8th Cir. 1997) and Kipkemboi v. Holder, 587 F.3d 885, 891 (8th Cir. 2009) among other cases.

On July 14, 2014, counsel for the Department of Justice's Office of Immigration Litigation (OIL) (the attorneys who represent the interests of the administrative immigration agencies in the Federal Circuit Courts) contacted me and informed me that they were in agreement with points made in my brief and were inclined to seek a remand (return of the case) to the BIA for those reasons.  That same day, OIL filed its "Unopposed Motion to Remand" with the 8th Circuit, and on July 16, 2014, I filed my client's "Nonopposition" to their motion.

Later, on July 16, 2014, the 8th Circuit entered its "Judgment" remanding our client's matters to the BIA for further proceedings, along with its "Mandate," which makes the judgment of the Court final.

Thus, we have accomplished that which we sought at the 8th Circuit, a downward referral of the case to the BIA due to factors which we believe rendered its initial decision erroneous.  Our client must now retain counsel to continue to represent and uphold those interests before the BIA and to seek actual "reopening" of the case and further remand to the IJ.

Reopening of this sort of case is critical for an alien in this type of situation, since an expiration of a voluntary departure, without an actual departure by the alien from the US, converts to a deportation/removal order automatically upon expiration of the voluntary departure period.  All administrative immigration agencies which are able to approve immigration applications (including, but not limited to the Immigration Court), in this circumstance, have no jurisdiction over the alien until the alien's case is formally reopened.

The alien is now in an enhanced position to argue for such reopening, given the analysis of not only myself, but of OIL in the matter.

We are respectful of OIL's thoughtfulness and professionalism in this complex case.

By:  Duane M. Hamilton, Esq.