This week, the Board of Immigration Appeals (BIA) issued a new decision, finding that it had jurisdiction over the appeal of an alien who had been removed from the United States "in error" by the Department of Homeland Security. This is an important ruling for any alien who has been erroneously removed either during the time allowed for filing an appeal or while an appeal is pending.
The alien in this case was a native and citizen of Mexico with criminal convictions for robbery and residential burglary. He was ordered deported by the Immigration Judge, and appealed his case to the BIA. At some point, either before he appealed, or while the appeal was pending, he was erroneously removed to Mexico by DHS, despite the fact that the regulations state that a removal order cannot be executed during this time. This was a problem because the regulations also state that a person's departure from the United States constitutes a withdrawal of their appeal. That is, if a person has been ordered removed, files an appeal with the BIA, but then departs the United States, that appeal is considered to be withdrawn, the BIA will not make a decision, and the order of removal becomes final.
In this decision, the BIA considered for the first time whether the regulations stating that a departure constitutes withdrawal applies to aliens who have been erroneously removed. The BIA found that such a removal does not constitute a withdrawal of the appeal, and that it has jurisdiction over the case. The BIA stated, "Fundamental fairness dictates that an unlawful act by the DHS should not serve to deprive us of jurisdiction to review an alien's appeal." The BIA cited Nken v. Holder, 556 U.C. 418, 436 (2009), pointing out that "there is a public interest in preventing aliens from being wrongfully removed."