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Keywords

tortlawyerappealhearingregulationparoledue processvisanaturalization
tortlawyerappealhearingregulationparoledue processvisanaturalization

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Diaz-Ruacho, Matter of

Facts

Nazar Bachynskyy, a twenty-eight year old citizen of Ukraine, entered the United States without being admitted or paroled. After being turned over to the legacy Immigration and Naturalization Service at a truck stop weigh station, removal proceedings were commenced. Bachynskyy conceded removability, but sought withholding of removal and protection under the Convention Against Torture. At the conclusion of the hearing on his claims, the Immigration Judge stated that she was continuing the case for four months, but stated that 'If I render a written decision before that date, you don't need to come back to court. Just make sure you stay in touch with your lawyers.' Bachynskyy did not specifically request voluntary departure at this hearing, and the IJ did not discuss the possibility or requirements of voluntary departure at the conclusion of the hearing.

Nazar Bachynskyy, a twenty-eight year old citizen of Ukraine, entered the United States without being admitted or paroled. After being turned over to the legacy Immigration and Naturalization Service at a truck stop weigh station, removal proceedings were commenced. Bachynskyy conceded removability, but sought withholding of removal and protection under the Convention Against Torture. At the conclusion of the hearing on his claims, the Immigration Judge stated that she was continuing the case for four months, but stated that 'If I render a written decision before that date, you don't need to come back to court. Just make sure you stay in touch with your lawyers.' Bachynskyy did not specifically request voluntary departure at this hearing, and the IJ did not discuss the possibility or requirements of voluntary departure at the conclusion of the hearing.

Issue

Whether the new regulation on notice regarding voluntary departure is retroactive and whether the lack of advisals constitutes a due process violation.

Whether the new regulation on notice regarding voluntary departure is retroactive and whether the lack of advisals constitutes a due process violation.

Rule

The current regulations regarding voluntary departure are not retroactively applicable to grants of voluntary departure made before January 20, 2009. The lack of advisals does not constitute a procedural defect for a due process claim.

The current regulations regarding voluntary departure are not retroactively applicable to grants of voluntary departure made before January 20, 2009. The lack of advisals does not constitute a procedural defect for a due process claim.

Analysis

The court found that the warnings required by the current regulations regarding voluntary departure are not retroactively applicable to grants of voluntary departure made before January 20, 2009. It also determined that Bachynskyy could not raise a colorable due process claim as there was no procedural defect based on the lack of advisals, and he did receive notice of the bond requirement, albeit somewhat flawed.

The court found that the warnings required by the current regulations regarding voluntary departure are not retroactively applicable to grants of voluntary departure made before January 20, 2009. It also determined that Bachynskyy could not raise a colorable due process claim as there was no procedural defect based on the lack of advisals, and he did receive notice of the bond requirement, albeit somewhat flawed.

Conclusion

The petition for review was dismissed as the denial of reinstating the voluntary departure award and was denied in all other respects.

The petition for review was dismissed as the denial of reinstating the voluntary departure award and was denied in all other respects.

Who won?

The government prevailed in the case because the court upheld the Board of Immigration Appeals' decision that the new regulations were not retroactive and that there was no due process violation.

The government prevailed in the case because the court upheld the Board of Immigration Appeals' decision that the new regulations were not retroactive and that there was no due process violation.

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