Petition for Writ of Certiorari — Pena-Muriel v. Mukasey (No. 07-1221)

Supreme Court, U.S.

PET LE OD

071221™MAR 24 2008

No. OW OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

FREDY HUGO PENA-MURIEL,

Petitioner,

Vv.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the First Circuit

PETITION FOR WRIT OF CERTIORARI

RANDY OLEN, Esq.

Counsel of Record

55 BRADFORD STREET

PROVIDENCE, RI 02903

(401) 274-1400

(401) 274-2480 Fax

Counsel for Petitioner

March 21, 2008

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5U001

i

QUESTION PRESENTED

1. Whether the Court of Appeals erred in holding that

the Board of Immigration Appeals lacked

jurisdiction to entertain petitioner’s motion to

reopen.

ii

TABLE OF CONTENTS

Question Presented

Table of Contents

Petition for a Writ of Certiorari

Citation to Opinions Below

Statement of Jurisdiction

Relevant Statutory Provisions

Statement of the Case

Statement of the Facts

I. THE COURT OF APPEALS ERRED IN

HOLDING THAT THE BOARD OF

IMMIGRATION APPEALS LACKED

JURISDICTION TO ENTERTAIN

PETITIONER'S MOTION TO REOPEN

A. Because Mr. Muriel’s Conviction Has Been

Vacated on the Merits, It Cannot Properly

Serve as the Basis For Removal

.8 CFR § 1003.23(b)(1) Does Not Bar

Reopening Where The Motion to Reopen Is

Based Upon A Vacated Conviction

ill

C. 8C.F.R §$ 1003.23(b)(1) Is No Longer Valid,

as it Conflicts With 8 U.S.C. §$ 1252

D. Mr. Muriel’s Wrongful Deportation Violates

Due Process

Conclusion

Appendix

Appendix A: First Circuit Opinion, June 13,

Appendix B: Decision of the Board of

Immigration Appeals, February 6, 2003 .... lla

Appendix C: Decision of Immigration Judge,

June 29, 2002

Appendix D: First Circuit Order of the Court,

October 24, 2007

Appendix E: First Circuit Order of the Court,

October 24, 2007

1V

TABLE OF AUTHORITIES

CASES

Alim v. Gonzalez,

446 F.3d 1239 (11th Cir. 2006)

Baez v. INS, 41 F.3d 19 (1994)

Becerra-Jimenez v. INS,

829 F.2d 996 (10th Cir. 1987)

Boakai v. Gonzalez,

447 F.3d 1 (1st Cir. 2006)

Bridges v. Wixon,

326 U.S. 135, 65 S.Ct. 1443 (1945)

Camacho-Bordes v. INS,

33 F.3d 26 (8th Cir. 1994)

Cardoso-Tlaseca v. Gonzales,

460 F.3d 1102 (9th Cir. 2006)

Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837 (1984)

Cruz v. Attorney General of the United States,

452 F.3d 240 (3rd Cir. 2006)

Cruz-Garza v. Ashcroft,

396 F.3d 1125 (10th Cir. 2005)

De Faria v. INS,

13 F.3d 422 (1st Cir. 1993)

Estrada-Rosales v. INS,

645 F.2d 819 (9th Cir. 1981)

Foucha v. Louisiana, 504 U.S. 71 (1992)

Haghi v. Russell,

744 F. Supp. 249 (D. Col. 1990)

Japanese Immigrant Case,

189 U.S. 86 (1903)

Juarez v. INS, 732 F.2d 58 (6th Cir. 1984) ..

Landon v. Plascencia, 459 U.S. 21 (1982)

Leitao v. Reno, 311 F.3d 453 (1st Cir. 2002) ....

Lok v. INS, 548 F2d 37 (2nd Cir. 1977)

Marrero v. INS,

990 F.2d 772 (3rd Cir. 1993)

Matter of Pena-Muriel,

A30-663-990

Matter of Pickering,

23 1. & N. Dec. 621 (BIA 2003)

Matter of Rodriguez-Ruiz,

221. & N. Dec. 1378 (BIA 2000)

Matthews v. Eldridge,

424 U.S. 319 (1976)

Mendez v. INS,

563 F.2d 956 (9th Cir. 1977)

Moore v. Ashcroft,

251 F.3d 919 (11th Cir. 2001)

Ngarurih v. Ashcroft,

371 F.3d 182 (4th Cir. 2004)

Ng Pho Ho v. White,

259 U.S. 276, 42 S.Ct. 492 (1922)

Papageorgiou v. Gonzalez,

413 F.3d 356 (3rd Cir. 2005)

Patel v. Ashcroft,

378 F.3d 610 (7th Cir. 2004)

Pena-Muriel v. Gonzales,

489 F.3d 438 (1st Cir. 2007)

Pena-Muriel v. Gonzales,

510 F.3d 350 (1st Cir. 2007)

Roldan v. Racette,

984 F.2d 85 (2d. Cir. 1993)

Saadi v. INS, 912 F.2d 428 (10th Cir. 1990) .... 11

Tapia-Garcia v. INS,

237 F.3d 1216 (10th Cir. 2001)

Umanzor v. Lambert,

782 F.2d 1299 (Sth Cir. 1986)

Wiedersperg v. INS,

896 F.2d 1179 (9th Cir. 1990)

William v. Gonzales,

499 F.3d 329 (4th Cir. 2007)

CONSTITUTION

U.S. Const. Art. V

STATUTES

INA § 106(c), 8 U.S.C. § 1105a(c)

INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227

INA § 237(a)(2)(A)(iii)

8 U.S.C. § 1229

8 U.S.C. §1252

28 U.S.C. § 1254(1)

REGULATIONS

8 C.F.R § 3.2

8 C.F.R. § 3.23

8 C.F.R. § 3.23(b)(1)

8 C.F.R. § 1003.2(d)

8 C.F.R § 1003.23(b)(1)

LEGISLATIVE

Illegal Immigration Reform and Immigrant

Responsibilty Act (IIRIRA), Pub. L. No. 104-208, 110

Stat. 3009 (1996) passim

Real ID Act of 2005, Pub. L. No. 109-13, 1419 Stat. 231

(2005)

R.I. Gen. Laws §§ 11-5-3 and 12-29-5 .... 2,3,4,6

OTHER AUTHORITIES

Gerald L. Neuman, Symposium: Jurisdiction and the

Rule of Law After the 1996 Immigration Act, 113

Harv. L. Rev. 1963 (2000)

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Fredy Hugo Pena-Muriel respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the First

Circuit.

CITATION TO OPINIONS BELOW

The decision of the Immigration Judge and the

Board of Immigration Appeals are unpublished,

Matter of Pena-Muriel, A30-663-990. The opinion of

the United States Court of Appeals for the First

Circuit in this case, dated June 13, 2007, is published

at 489 F.3d 438 (1st Cir. 2007). The petitions for

rehearing and for rehearing en banc were denied on

October 24, 2007 and are published at 510 F.3d 350

(1st Cir. 2007).

STATEMENT OF JURISDICTION

The Court of Appeals decided the petition for

review on June 13, 2007, and denied the petitions for

rehearing and for rehearing en banc on October 24,

2007. On January 9, 2008, Mr. Justice Souter

extended the time for filing a petition for a writ of

certiorari to and including March 22, 2008. The Court

of Appeals had jurisdiction to review the decision of

the Board of Immigration Appeals pursuant to

Immigration and Nationality Act (“INA”) §242, 8

U.S.C. §1252, as amended by the Real ID Act of 2005,

Pub. L. No. 109-13, 119 Stat. 231 (2005) (RIDA). This

Court has jurisdiction to review the judgment on a writ

of certiorari pursuant to 28 U.S.C. §1254(1).

2

RELEVANT STATUTORY PROVISIONS

(Former) 8 U.S.C. § 1105a(c) (eliminated by the Illegal

Immigration Reform and Immigrant Responsibility Act

(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996))

An order of deportation or of exclusion shall not

be reviewed by any court if the alien has not

exhausted the administrative remedies

available to him as of right under the

immigration laws and regulations or if he has

departed from the United States after the

issuance of the order...

8 C.F.R. § 1003.23(b)(1)

...A motion to reopen or to reconsider shall not

be made by or on behalf of a person who is the

subject of removal, deportation, or exclusion

proceedings subsequent to his departure from

the United States...

United States Constitution, Article V

No person shall be deprived of life, liberty, or

property, without due process of law.

STATEMENT OF THE CASE

Petitioner is a native and citizen of Bolivia who

entered the United States as a lawful permanent

resident on September 27, 1970. He was convicted of

Domestic Assault in the Providence, Rhode Island

Sixth District Court in violation of R.I. Gen. Laws § 11-

3

5-3 and § 12-29-5 on February 19, 1997. Mr. Muriel

received a one year suspended sentence.

Mr. Muriel was placed in removal proceedings and

ordered removed on August 14, 1997, pursuant to INA

§ 237(a(2E)i) [8 U.S.C. § 1227 (a)(2)(E)G)] as an

alien convicted of a domestic violence offense. He did

not appeal the order, and departed the United States.

On March 22, 2002, Mr. Muriel’s plea was vacated by

the Rhode Island District Court in Providence, Rhode

Island, when the alleged victim of the domestic assault

recanted her allegations. On March 27, 2002, the

prosecution dismissed all charges against Mr. Muriel.

On May 16, 2002, Mr. Muriel filed a motion to

reopen his deportation proceedings based on the

vacatur of his conviction. The Immigration Judge

denied the motion due to lack of jurisdiction, basing

his decision on 8 C.F.R. § 3.23(b)(1) (now 8 C.F.R.

§ 1003.23(b)(1)). The Board of Immigration Appeals

issued a summary affirmance on February 6, 2003.

Mr. Muriel petitioned the United States District

Court for the District of Massachusetts for a writ of

habeas corpus. The petition was transferred to the

First Circuit Court of Appeals as a petition for review

pursuant to the May 11, 2005 enactment of the Real

ID Act. The Court of Appeals denied the petition for

review on June 13, 2007, and petitions for rehearing

and for rehearing en banc on October 24, 2007. This

petition for writ of certiorari follows.

an

4

STATEMENT OF THE FACTS

Petitioner Fredy Hugo Pena-Muriel (Muriel) is a

native and citizen of Bolivia who entered the United

States as an immigrant in 1970, at 16 months of age.

Thereafter, he resided as a lawful permanent resident

of the United States for 27 years. His famiiy, including

his child, mother, father, and two brothers are citizens

of the United States, and he has dozens of other family

members residing in the United States as citizens or

lawful permanent residents.

On February 19, 1997, Mr. Muriel was convicted of

domestic assault in the Providence, Rhode Island Sixth

District Court, in violation of R.I. Gen. Laws §$§ 11-5-3

and 12-29-5. He was sentenced to a one year term of

imprisonment, which was suspended. The conviction

was obtained as a result of the false allegation of the

complaining witness, which was later recanted. As a

result of this conviction, Mr. Muriel was placed in

removal proceedings through the issuance of a Notice

to Appear (NTA) dated July 17, 1997, charging him

with being deportable as an alien convicted of a crime

of domestic violence and an aggravated felony,

pursuant to INA §§ 237(a)(2)(E)G@) and 237(a)(2)(A)(ili).

On September 15, 1997, Mr. Muriel was ordered

deported.

In March, 2002, Mr. Muriel filed an application for

post-conviction relief in the Sixth District Court, when

the complaining witness came forward and recanted

her prior allegations. The court granted the application

on March 22, 2002, and the criminal charge was

subsequently dismissed.

4)

Mr. Muriel then filed a motion to reopen his

removal proceedings on May 8, 2002. On June 29,

2002, the motion was denied by an Immigration Judge

(IJ). The IJ’s decision was based exclusively on 8

C.F.R. § 3.23(b)(1) (now 8 C.F.R. § 1003.23(b)(1)),

which states, in relevant part, that “a motion to reopen

or reconsider shall not be made by or on behalf of a

person who is the subject of removal, deportation, or

exclusion proceedings subsequent to his or her

departure from the United States.” On February 6,

2003, the Board of Immigration Appeals (BIA)

summarily affirmed the IJ’s decision, in an affirmance

without opinion.

On May 28, 2003, Mr. Muriel filed a petition for

writ of habeas corpus in the United States District

Court for the District of Massachusetts, No. 03-1984-

MEL, seeking review of the BIA’s decision. On June

21, 2005, the case was transferred to the United States

Court of Appeals for the First Circuit as a petition for

review pursuant to § 106(c) of the Real ID Act of 2005,

Pub. L. No. 109-13, Div. B, 119 Stat. 231 (RIDA). The

Court of Appeals denied the petition for review on

June 13, 2007 and petitions for rehearing and for

rehearing en banc on October 24, 2007. This petition

for writ of certiorari follows.

6

ARGUMENT

I. THE COURT OF APPEALS ERRED IN

HOLDING THAT THE BOARD OF

IMMIGRATION APPEALS LACKED

JURISDICTION TO ENTERTAIN

PETITIONER’S MOTION TO REOPEN

Petitioner Fredy Muriel, a native and citizen of

Bolivia, was admitted to the United States as a lawful

permanent resident alien in 1970, when he was one

year and 4 months old. On August 14, 1997, after

having lived in the United States for 27 years, he was

ordered removed on the basis of a conviction for the

offense of Domestic Assault, in violation of R.I. Gen.

Laws §§ 11-5-3 and 12-29-5. He did depart the United

States, and has been living abroad since that time.

Mr. Muriel’s conviction, however, was based on

fraudulent allegations that were later recanted by the

complaining witness in a sworn affidavit. His

conviction was duly vacated on March 22, 2002, and all

charges against him were dismissed. Because the

conviction that had formed the basis for the order to

remove him to Bolivia in the first instance had been

vacated, Mr. Muriel filed a motion to reopen his

immigration proceedings. An Immigration Judge,

however, denied the motion on the basis of 8 C.F.R

§ 3.23(b)(1) (now 8 C.F.R. § 1003.23(b)(1)), stating that

“a motion to reopen may not be filed by or on behalf of

a person who is the subject of removal, deportation or

exclusion proceedings subsequent to his departure

7

from the United States.”* The Board of Immigration

Appeals issued a summary affirmance of that decision.

A. Because Mr. Muriel’s Conviction Has Been

Vacated on the Merits, It Cannot Properly

Serve as the Basis For Removal

The vacatur of the underlying conviction that

formed the basis of Mr. Muriel’s 1997 deportation

proceedings was on the merits, resulting in a clear

defect in those proceedings which requires reopening.

The First Circuit has held that “the overturning of a

conviction upon which deportability was premised is

an appropriate basis for reopening administrative

proceedings.” De Faria v. INS, 13 F.3d 422, 423 (1st

Cir. 1993).

In De Faria, the Court of Appeals cited a number of

cases approvingly for the proposition § that

administrative proceedings are appropriately reopened

when the conviction upon which deportability is based

is overturned. Id. at 423-24. See also Haghi v.Russell,

744 F. Supp. 249, 251 (D. Col. 1990) (holding that “[ijf

there [was] no conviction, there [was] probably [also]

no longer a basis for a deportation order ...”, and

remanding the case back to the BIA for

reconsideration of the motion to reopen in light of the

new evidence); Becerra-Jimenez v. INS, 829 F.2d 996,

1001 (10th Cir. 1987) (holding that evidence not

available at the time of Petitioner’s initial removal

hearing, including the expungement of two of his

' Matter of Pena-Muriel, A30-663-990, June 29, 2002, Decision of

the Immigration Judge at 2.

8

criminal convictions, served as a basis for ordering the

BIA to reopen proceedings on remand to hear

evidence). One of the cases cited by the First Circuit,

Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990),

found thac the BIA had abused its discretion in

refusing to reopen administrative proceedings after

petitioner’s conviction had been vacated. “Where

Congress has made deportability depend upon a state’s

action in convicting an alien‘of a state-defined crime,

it offends no sense of symmetry to hold that a state’s

action vacating and totally nullifying that conviction

should render the deportation not legally executed.”

Wiedersperg, 896 F.2d at 1182.

The positien that the vacatur of a conviction that

supports an order of deportation is a valid basis for

reopening administrative proceedings is held by the

Board of Immigration Appeals as well as all but one of

the circuit courts. The BIA routinely terminates

removal proceedings when the conviction upon which

the charge was based is vacated. See Matter of

Rodriguez-Ruiz, 221. & N. Dec. 1378, 1380 (BIA 2000).

There, the BIA held specifically that after the

conviction was properly vacated, there was “no current

basis to find the respondent removable as charged.”

Rodriguez-Ruiz, 221. & N. at 1380. A vacatur that has

been granted (1) on the merits, and (2) not as a result

of a state rehabilitative measure, goes directly to the

validity of any charge of deportability based on the

vacated conviction, and must be considered an

appropriate ground for a motion to reopen those

proceeuings. See, e.g., Alim v. Gonzalez, 446 F.3d

1239, 1244 (11 Cir 2006) (stating that to continue to

consider a conviction that was vacated on appeal a

conviction for immigration purposes is “so foreign, so

9

antithetical, to the longstanding principles underlying

our criminal justice system and our notions of due

process that we would expect Congress to have spoken

very clearly if it intended to effect such results. It has

not, however, done so”); Cruz-Garza v. Ashcroft, 396

F.3d 1125, 1129 (10" Cir. 2005) (“In sum, the

treatment of vacated convictions is now fairly well-

settled. Notwithstanding the Fifth Circuit’s tenuous

adherence to a categorical disregard of all vacaturs ...

‘the rest of the nation’ has [held a properly vacated

conviction cannot support a charge of deportability]”).

In Cruz v. Attorney General of the United States,

452 F.3d 240 (3rd Cir. 2006), the Ninth Circuit noted

that even untimely motions to reopen are routinely

granted, pursuant to the agency’s sua sponte authority

to reopen, where based on properly vacated

convictions. Id. at 250 (“Should the Board determine

on remand that Cruz is no longer ‘convicted’ under the

INA, we would expect it to reopen his proceedings

despite the untimeliness of his motion, as it has

routinely done in other cases where a conviction was

vacated under Pickering, or at least explain logically

its unwillingness to do so.”).

Mr. Muriel sought to have his conviction for

domestic assault vacated following notification that

the complaining witness had recanted her allegations.

As a result of the new information and a dismissal of

all charges against Mr. Muriel by the prosecution, the

court grantec the motion to vacate his conviction.

According to De Faria, and authority cited therein, Mr.

Muriel is entitled to have his administrative

proceedings reopened in light of the new evidence that

his underlying conviction has been vacated. Moreover,

10

the vacatur of the conviction is clearly effective for

immigration purposes; the conviction was (1) granted

on the merits, as the result of the revelation that the

allegations that had garnered his conviction had been

fraudulently offered, and (2) not on the basis of a

rehabilitative measure. See Matter of Pickering, 23 I.

& N. Dec. 621 (BIA 2003). Just as there were no

grounds for Mr. Muriel’s conviction, there are no

grounds for his order of deportation. The validity of the

deportation proceedings which resulted in Mr. Muriel’s

removal from the United States has been fatally

undermined. The sole ground upon which his removal

was based has been vacated. In order to correct the

serious collateral consequences of his erroneous

conviction, his removal proceedings must be reopened.

B. 8 C.F.R § 1003.23(6)(1) Does Not Bar

Reopening Where The Motion to Reopen

Is Based Upon A Vacated Conviction

Prior to the enactment of the Illegal Immigration

Reform and Immigrant Responsibility Act, Pub. L.

104-208, Div. C, 110 Stat. 3009-626 (1996) (IIRIRA),

INA § 106(c), 8 U.S.C. § 1105a(c) governed circuit court

jurisdiction to review motions to reopen. The statute

read, in pertinent part, that “[aJn order of deportation

or of exclusion shall not be reviewed by any court if the

alien ... has departed from the United States after the

issuance of the order.” Before the 1996 enactment of

IIRIRA, the circuits were split as to how to interpret

the language of §106(c), specifically the word

“departed”. A number of circuits held that “departed”

did not refer to those departures that were not legally

executed or that were effected in violation of due

process. See Mendez v. INS, 563 F.2d 956 (9th Cir.

11

1977); Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir.

1981); Juarez v. INS, 732 F.2d 58 (6th Cir. 1984);

Camacho-Bordes v. INS, 33 F.3d 26, 28 (8th Cir. 1994)

(holding that there is jurisdiction to “review an order

of deportation ... if the record reveals a colorable due

process claim”); Marrero v. INS, 990 F.2d 772, 777 (3rd

Cir. 1993) (same). Other circuits, including the First

Circuit, have held that the language should be

interpreted to provide an absolute bar to jurisdiction

after an alien had departed the United States,

regardless of the circumstances. See Baez v. INS, 41

F.3d 19 (1994); Roldan v. Racette, 984 F.2d 85, 90 (2d.

Cir. 1993); Umanzor v. Lambert, 782 F.2d 1299 (5th

Cir. 1986); Saadi v. INS, 912 F.2d 428, 428 (10th Cir.

1990).

In Mendez, the Petitioner was deported after his

underlying conviction had been vacated, and without

having had an opportunity to contact his counsel of

record. Appellant’s attorney filed a motion for

reconsideration with the BIA, which was denied on

jurisdictional grounds because Mendez had already

“departed” the United States. The Ninth Circuit

reversed, ordering the INS to readmit Mr. Mendez and

grant him the same status that he had held prior to

the defective deportation, in order to allow him to

pursue appropriate administrative remedies. Id. at

959. In reaching its opinion, the court reasoned that it

had “difficulty viewing appellant as falling within the

statutory definitions of one who ‘has departed the

United States’ or who has ‘been deported in pursuance

of law.” Id. at 958.

The Ninth Circuit expounded on its Mendez holding

in Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir.

12

1981). There, the alien’s conviction was vacated after

his deportation, and the Board of Immigration Appeals

denied his motion to reopen based upon the post-

departure bar. In granting the petition for review, the

court stated that “the regulation in turn is taken from

the provision in the Immigration and Nationality Act

which precludes judicial review of an order once an

alien has ‘departed’ from the United States [8 U.S.C.

§ 1105a(c)).” Id. at 820. The court held that a

deportation based upon an invalid conviction is “not

‘legally executed” and therefore “cannot now serve as

a legitimate ground for deportation so as to foreclose

reopening.” Id. Similarly, in Wiedersperg v. INS, 896

F.2d 1179 (9th Cir. 1990), the court determined that it

had jurisdiction to review the denial of the motion to

reopen (based on the post-departure bar) where the

motion was based on the vacatur of a conviction which

occurred subsequent to the alien’s deportation. Again

noting that “the regulation takes its language from

and operates parallel to 8 U.S.C. § 1105a(c),” the court

affirmed the Mendez holding that the jurisdictional

bars both to judicial review, pursuant to §1105a(c), and

to reopening, pursuant to 8 C.F.R § 3.2, do not apply

where the departure was not a “legally executed,” one.

896 F.2d at 1180. The court determined that a

deportation based upon a conviction which was later

vacated on the merits is not “legally executed,” and 8

C.F.R. § 3.2 therefore did not bar reopening. The

holding has been extended to post- ITRIRA cases in

which a conviction was vacated subsequent to the

alien’s departure from the United States. See

Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106 (9th

Cir. 2006) (deportation based upon an _ invalid

conviction which was vacated subsequent to

deportation not “legally executed”; therefore, defective

13

deportation may be reopened after Petitioner’s

departure). The Third, Sixth, and Eighth Circuits

have agreed that the courts have jurisdiction to review

the colorable due process claim of an alien whether or

not his deportation has already been effected. Marrero,

990 F.2d at 777; Juarez, 732 F.2d at 58; Camacho-

Bordes, 33 F.3d at 28.

In its disagreement with these holdings in Baez v.

INS, 41 F.3d 19 (1st Cir. 1994), the First Circuit found

the prohibition on judicial review of an order of

deportation where the alien had departed from the

United States to be “absolute,” reflecting “Congress’s

determination to eliminate repetitive and unjustified

appeals.” 41 F.3d at 22. The court determined that the

“plain language of the statute prohibits judicial review

of a deportation order once the order has been

executed.” Id. at 24.

As a result of the enactments in ITRIRA and RIDA,

this statutory prohibition no longer exists. When

Congress enacted § 1252(d), it eliminated the language

that had previously existed in § 1105a(c) which barred

judicial review after an alien had departed the United

States. Section 1252 (“judicial review of orders of

removal”) replaced the pre-existing jurisdictional

provisions; notably, the language regarding post

departure judicial review was removed from the

statute completely. Whatever the correctness of the

First Circuit’s decision in Baez may have been, it is no

longer viable with the elimination of §1105a(c). Thus,

any continued reliance on Baez as support for the

continuing validity of the regulation is inappropriate.

14

C. 8 C.F.R § 1003.23(b)(1) Is No Longer Valid,

as it Conflicts With 8 U.S.C. § 1252

The elimination of the prohibition on judicial

review as a result of an alien’s departure was an

integral part of an overall goal of balancing more

effective removal procedures with the demands of due

process. Reinstatement of judicial review despite an

alien’s departure is consistent with this goal, as it

reduces the potential for delay in executing a removal

order while protecting the due process rights of the

alien.

The permanent rules now give courts the

opportunity to make decisions on stay of

removal without the overriding concern that

removal will end the case. Effective use of that

opportunity should further decrease the

incentive to bring insubstantial claims for

purposes of delay. Despite the seeming paradox,

elimination of the departure rule facilitates both

streamlined enforcement and judicial review.

Gerald L. Neuman, Symposium: Jurisdiction and the

Rule of Law After the 1996 Immigration Act, 113

HARV. L. REV. 1963, 1995-97 (2000).

Thus, it is now well-settled that an alien’s

departure does not eliminate judicial review. See

Leitao v. Reno, 311 F.3d 453 (1st Cir. 2002). See also

Tapia-Garcia v. INS, 237 F.3d 1216, 1217 (10th Cir.

2001)(“deportation no longer forecloses judicial

review”); Moore v. Ashcroft, 251 F.3d 919, 922 (11™

Cir. 2001) (“removal from the United States does not

render [the petitioner’s] case moot”); Ngarurih_ v.

15

Ashcroft, 371 F.3d 182, 192-93 (4 Cir. 2004) (8 U.S.C

§ 1252 “does not purport to cut off appellate

jurisdiction once an alicn leaves the country,” and that

“an alien may continue to prosecute his appeal of a

final order of removal even after he departs the United

States”); Patel v. Ashcroft, 378 F.3d 610, 612-13 (7th

Cir. 2004) (holding that circuit court jurisdiction is

barred after an alien departs the country only if the

petition was filed under former § 1105a(c) or ITIRIRA’s

transitional rules).

Furthermore, the REAL ID Act of 2005 further

amended the jurisdictional provision, again

broadening the jurisdiction for the courts of appeals to

review final orders of removal when constitutional

questions or questions of law _ remain. See

Papageorgiou v. Gonzalez, 413 F.3d 356, 358 (3rd Cir.

2005) (holding that “Congress evidenced its intent to

restore judicial review of constitutional claims and

questions of law presented in petitions for review of

final removal orders.”) See also Boakai v. Gonzalez,

447 F.3d 1, 4 (1st Cir. 2006) (noting that the REAL ID

Act broadened the jurisdiction of the courts of appeals

to hear petitions for review filed by aliens convicted of

aggravated felonies seeking relief under the

Convention Against Torture). In sum, these statutory

revisions evidence Congress’ intent to organize and

streamline the judicial review procedures, while at the

same time clearly recognizing the necessity to protect

noncitizens’ due process rights to have their claims

heard.

The BIA erred in relying on 8 C.F.R § 1003.23(b)(1)

to deny petitioner’s motion to reopen for lack of subject

matter jurisdiction, because that regulation is

16

inextricably linked to a statute that has since been

substantially amended, and no longer includes any

mention of restrictions on post-departure jurisdiction.

Thus, the regulation itself is no longer valid, as it is in

clear conflict with 8 U.S.C. § 1252. Before ITRIRA was

enacted, INA § 106(c), 8 U.S.C. § 1105a(c) governed

circuit court jurisdiction to review motions to reopen.

It read, “{aJn order of deportation or of exclusion shall

not be reviewed by any court if the alien ... has

departed from the United States after the issuance of

the order.” The Department of Justice duly passed

regulations in conformity with the statute. 8 C.F.R.

§ 1003.2(d) (pertaining to the Board of Immigration

Appeals) and § 1003.23(b)(1) (pertaining to

immigration judges) both state 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 matter of

exclusion, deportation or removal proceedings

subsequent to his or her departure from the United

States.”

These regulations forbid an alien from filing a

motion to reopen, and ostensibly forbid the courts from

considering such a motion, after the petitioner has

departed the United States. The regulations were

adopted in the same year as the enactment of

§1105a(c), and contain the exact language of the

statute. Now, there is no such language in §1252; yet

the regulation has not been changed to reflect the new

mandate from Congress. The Ninth Circuit held in

Wiedersperg that 8 C.F.R. § 3.2 (now redesignated as

§1003.2(d)) “takes its language from and operates

parallel to” §1105a(c). 896 F.2d at 1180, n. 2. That the

court equated the language of the regulation to the

17

language of the statute indicates the former’s

dependence on the latter for its relevance.

In its decision below, the First Circuit rejected the

position that the elimination of §1105a(c) clearly

expressed Congressional intent to invalidate the

regulatory departure bar of 8 C.F.R. § 1003.23(b)(1) on

motions to reopen. It further determined that the

regulation was a reasonable interpretation of the

statute, under the second step of Chevron U.S.A. Inc.

v. NRDC, 467 U.S. 837 (1984). The court concluded

that the statutory change permitting post-departure

appeals did not “remotely” support the argument that

Congress also intended to permit post-departure

motions to reopen.

The First Circuit’s conclusion is contrary to the

Congressional intent to streamline removal

proceedings, while at the same time protecting the due

process rights of aliens. Permitting noncitizens who

have been deported to continue to press their claims

subsequent to their departure eliminates the incentive

to file frivolous appeals for the purpose of remaining in

the United States. At the same time, those with

meritorious claims are able to have them fully

litigated, which vindicates due process concerns. This

rationale is equally applicable to the motion to reopen

context. It is not a reasonable interpretation, in light

of the elimination of §1105a(c), to permit valid post-

departure claims to proceed on judicial review, yet

disallow similarly meritorious post-departure claims

based solely on the post-departure regulation. The

18

regulation is in direct conflict with the amended

statute, and must be invalidated.?

D. Mr. Muriel’s Wrongful Deportation

Violates Due Process

In this case, the specific facts of Mr. Muriel’s case

are compelling. He was convicted and subsequently

deported based on a false presentation of facts. These

facts were not corrected until over four years after his

deportation. As a result, Mr. Muriel had no past

opportunity to take appropriate measures to preserve

his right to remain in the United States. In particular,

he has never withstood removal proceedings with

accurate criminal charges. He was rendered

* In a decision rendered subsequent to the decision in this case,

the United States Court of Appeals for the Fourth Circuit

invalidated 8 C.F.R. §1003.2(d), the regulation banning post-

departure motions to reopen before the Board of Immigration

Appeals (the regulation at issue in this case, 8 C.F.R.

§1003.23(b)(1), is a parallel regulation banning post-departure

motions to reopen before an Immigration Judge; the language of

the post-departure bar in both provisions is identical). The Fourth

Circuit held that the regulation conflicted with the language of the

statute governing motions to reopen, 8 U.SC. §1229(a)(c)(7)(A), as

enacted by IIRIRA. That statute codified the regulations

pertaining to motions to reopen, and did not include the post-

departure bar in its codification. Thus, the Fourth Circuit held

the regulation is invalid under step one of the Chevron analysis.

See William v. Gonzales, 499 F.3d 329 (4th Cir. 2007).

In his petition for rehearing, Mr. Muriel raised the William

decision and arguments supporting it. In the denial of the petition

for rehearing, the First Circuit refused to address the argument

on the ground that it was not raised in the original petition. See

Pena-Muriel v. Gonzales, 510 F.3d 350 (1st Cir. 2007).

19

defenseless because of an unlawful criminal conviction.

His present claim is to correct a clear injustice that

was not remediable prior to his removal from the

United States.

As a lawful permanent resident, Mr. Muriel is

protected by the United States Constitution. See The

Japanese Immigrant Case, 189 U.S. 86, 100-101 (1903)

(alien has due process rights). His long-term residency

and family ties te the United States heighten this

protection. See Landon v. Plascencia, 459 U.S. 21, 32

(1982) (once an alien is admitted and develops ties that

go with permanent residence his constitutional status

changes accordingly). Mr. Muriel’s constitutional

rights are not minimized because he has suffered an

unlawful conviction and baseless deportation. He

continues to endure the prohibition against his return

to the United States and the painful separation from

his child and family. There are no grounds for his

deportation and there is no basis for his continued

unlawful exclusion from the United States.

The Due Process Clause of the Fifth Amendment

provides that “No person shall ... be deprived of

... liberty without due process of law. This right to

liberty is a fundamental interest.” See Foucha v.

Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from

bodily restraint has always been at the core of the

liberty protected by the Due Process Clause from

arbitrary government action”). Mr. Muriel is actively

restrained from maintaining his status as a lawful

permanent resident, despite the fact that there was no

basis for his removal. He sought to reopen his case to

establish that his removal was unwarranted and

illegal, and to demonstrate that there are no lawful

20

reasons that prevent his re-entry into the United

States, so that he may rejoin his family and continue

his permanent residency. This action is arbitrary and

constitutes a due process violation.

Mr. Muriel is entitled to procedural due process

measured by balancing: (1) his private interest affected

by the government; (2) the risk the government will

erroneously deprive him of that interest, and the value

of additional or substitute procedural safeguards to

prevent that from happening; and (3) the government’s

interest, including the fiscal and administrative

burdens the additional or substitute procedural

safeguards would impose. See Matthews v. Eldridge,

424 U.S. 319, 335 (1976). Mr. Muriel has been

wrongfully stripped of his United States residency.

This punishment has been characterized as a “sanction

which in severity surpasses all but the most Draconian

criminal penalties,” Lok v. INS, 548 F2d 37 (2™ Cir.

1977), which “may result in the loss of ‘all that makes

life worth living’.” Bridges v. Wixon, 326 U.S. 135,

147,6558.Ct. 1443 (1945) (quoting Ng Pho Ho v. White,

259 U.S. 276, 284, 42 S.Ct. 492 (1922)). The

government has already erroneously deprived Mr.

Muriel of his right to reside in the United States and

he is further prevented from returning because of

criminal penalties associated with an unlawful return.

Therefore, the severity of his plight stems from the

violation of the procedural safeguards of the

Constitution.

This Court should note that the only expense to the

government in this case would consist of an

Immigration Judge making a routine administrative

review of the case in order to determine the validity of

21

Mr. Muriel’s removal order. As discussed supra, it is

well-established that where a conviction is vacated,

there is an appropriate basis for reopening deportation

proceedings. See DeFaria v. INS, 13 F.2d 422, 423 (1

Cir. 1993). A vacated conviction will be recognized for

immigration purposes if it is not pursuant to an

expungement or rehabilitative statute, see Matter of

Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000), and if

the vacatur was not solely for immigration purposes.

See Matter of Pickering, 23 I&N Dec. 621 (BIA 2003).

Here, the vacatur occurred because a fraud had been

committed on the Court arising out of false allegations.

This analysis is within the expertise of the

Immigration Judge and is a task that the judge

performs many times daily. The government will not

be affected adversely by re-hearing this case. The

slight allocation of resources necessary for this task is

greatly outweighed by the irreparable harm that Mr.

Muriel is suffering because of his unlawful

deportation.

It is no answer to say, as the First Circuit did in its

decision below, that Mr. Muriel’s “removal proceeding

came to a lawful conclusion before his conviction was

vacated.” 489 F.3d at 443. Nor does the fact that his

motion to reopen was filed some years after his

removal proceedings concluded; the fraud underlying

the conviction simply did not come to light until that

time, and he promptly vacated the conviction and

sought reopening. While the goal of finality is a

legitimate one, it cannot trump that of due process; a

deportation which is based on a fraudulent, now-

vacated conviction is repugnant to due process values.

22

Mr. Muriel’s case represents a unique situation and

requires the consideration of practical realities and

due process concerns. Mr. Muriel’s conviction has been

vacated, but he still suffers from the penalty imposed

as a result of that fraudulently obtained conviction.

Due process requires that the penalty be lifted in

keeping with the revelation of Mr. Muriel’s innocence.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully Submitted,

Fredy Hugo Pena-Muriel

By His Attorney,

Randy Olen, Esq.

Counsel of Record

55 Bradford Street

Suite 203

Providence, RI 02903

(401) 274-1400

(401) 274-2480 (fax)