Today, the INA expressly provides an alien the right to file one motion to reopen and one motion to reconsider. See 8 U.S.C. § 1229a(c)(6)(A) (regarding motions to reconsider); § 1229a(c)(7)(A) (regarding motions to reopen). The statute makes no reference to the movant’s geographical location.

Under the Immigration and Nationality Act (INA), after an immigration judge orders that an alien be removed from the United States, the alien may appeal to the Board. 8 U.S.C. §§1229a(a)(1), (c)(5). The alien also has a statutory right to file one motion to reopen the removal proceedings, but he must file that motion within 90 days of the final removal order.

Today, the INA expressly provides an alien the right to file one motion to reopen and one motion to reconsider. See 8 U.S.C. § 1229a(c)(6)(A) (regarding motions to reconsider); § 1229a(c)(7)(A) (regarding motions to reopen). The statute makes no reference to the movant’s geographical location.

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.”Ovalles first argued the post-departure bar contradicts the clear language of 8 U.S.C. § 1229a(c)(6)(A) and (c)(7)(A) that an “alien may file one motion to reconsider” and “may file one motion to reopen.” According to the Court, Ovalles urged it to follow the Fourth Circuit’s decision in William v. Gonzales, 499 F.3d 329, 331-34 (4th Cir. 2007), in which the Fourth Circuit “held that the post-departure bar in section 1003.2(d) was invalid because it conflicted with the clear and unambiguous language of section 1229a(c)(7)(A) of IIRIRA.”

The Court stressed that 8 U.S.C. § 1252(b)(4)(B) already provides a deferential standard of review for reviewing courts, requiring them to “accept ‘administrative findings’ as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Although other provisions of the INA provide that noncitizens are entitled to “a rebuttable presumption of credibility on appeal” absent an “explici[t]” “adverse credibility determination,” 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C), 1229a(c)(4)(C), that presumption applies only during an “appeal” from the IJ to the BIA. It does not apply when an Article III court “reviews” the BIA’s decision on appeal.The Court also considered Alcaraz-Enriquez and Ming Dai’s alternative argument that they were entitled to a presumption of credibility before the BIA that the BIA failed to overcome with explicit adverse credibility determinations.

See Sec. 3502(c), “Improving Immigration Court Efficiency and Reducing Costs By Increasing Access To Legal Information,” at bill p. 567 et. seq. (providing changes to 8 USC 1362, the current statutory right to counsel section, and 8 U.S.C. 1229a(b)(4), “alien’s rights in [removal] proceeding”). It also gives the Attorney General authority to appoint counsel at government expense to noncitizens in removal proceedings, “in the Attorney General’s sole and unreviewable discretion.”

Waugh, No. 10-9551, slip op. at 2, 3.The Tenth Circuit began by noting that “[t]he government bears the burden of proving by clear and convincing evidence that the alien is removable.” Waugh, No. 10-9551, slip op. at 6 (citing 8 U.S.C. § 1229a(c)(3)(A)).The court then explained that Waugh improperly relied on the Padilla Court’s recognition that criminal law and immigration law have become increasingly intertwined over recent decades such that today “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Waugh, No. 10-9551, slip op. at 9 (discussing Padilla, 130 S.Ct. at 1480).

In a decision released last week, the Tenth Circuit considered a respondent’s claim that the poor quality of the transcript of his removal proceedings constituted a violation of his due process rights. 8 U.S.C. § 1229a(b)(4)(C); 8 C.F.R. § 1240.9.Nonetheless, violation of this statutory and regulatory requirement is not enough to mandate reversal or remand. Witjaksono, slip op. at 10.