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appealmotionwillvisacase law
appealmotionwillvisacase law

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Khan v. Department of Justice

Facts

Petitioner is a native and citizen of Pakistan who received lawful permanent resident status in 1999 through an application filed by his United States citizen father. Upon petitioner's return to the United States from a trip to Pakistan in February 2004, immigration authorities discovered that petitioner had a 1991 conviction in the State of Georgia for the possession and sale of marijuana. Petitioner subsequently received an April 5, 2004 Notice to Appear in removal proceedings. The Notice to Appear charged that petitioner was subject to removal because (1) he had been convicted of a controlled substance offense, (2) he had sought to procure a visa, other documentation, admission to the United States, or some other immigration benefit through fraud or the willful misrepresentation of a material fact, and (3) at the time of his application for admission, he lacked valid entry documents. On November 25, 2005, after a change of venue and several continuances, IJ Straus ordered petitioner removed in absentia and denied petitioner's applications for cancellation of removal, waiver of removal, and adjustment of status.

Petitioner is a native and citizen of Pakistan who received lawful permanent resident status in 1999 through an application filed by his United States citizen father. Upon petitioner's return to the United States from a trip to Pakistan in February 2004, immigration authorities discovered that petitioner had a 1991 conviction in the State of Georgia for the possession and sale of marijuana. Petitioner subsequently received an April 5, 2004 Notice to Appear in removal proceedings. The Notice to Appear charged that petitioner was subject to removal because (1) he had been convicted of a controlled substance offense, (2) he had sought to procure a visa, other documentation, admission to the United States, or some other immigration benefit through fraud or the willful misrepresentation of a material fact, and (3) at the time of his application for admission, he lacked valid entry documents. On November 25, 2005, after a change of venue and several continuances, IJ Straus ordered petitioner removed in absentia and denied petitioner's applications for cancellation of removal, waiver of removal, and adjustment of status.

Issue

Whether the BIA erred in denying petitioner's motion to reconsider its dismissal of his appeal as untimely without considering whether extraordinary or unique circumstances excused the untimely filing.

Whether the BIA erred in denying petitioner's motion to reconsider its dismissal of his appeal as untimely without considering whether extraordinary or unique circumstances excused the untimely filing.

Rule

The BIA has the discretion to hear untimely appeals in extraordinary or unique circumstances, and it abuses its discretion if it fails to consider whether such circumstances exist.

The BIA has the discretion to hear untimely appeals in extraordinary or unique circumstances, and it abuses its discretion if it fails to consider whether such circumstances exist.

Analysis

The court analyzed the BIA's decision and found that it did not mention the standard for equitable exceptions articulated in Zhong Guang Sun, nor did it cite any case law applying that standard. The BIA's language suggested an assumption that there were no equitable exceptions to the time limits for appeals. The court concluded that remand was warranted because there was sufficient indicia that the BIA did not consider the limited equitable exceptions to the timely filing of appeals.

The court analyzed the BIA's decision and found that it did not mention the standard for equitable exceptions articulated in Zhong Guang Sun, nor did it cite any case law applying that standard. The BIA's language suggested an assumption that there were no equitable exceptions to the time limits for appeals. The court concluded that remand was warranted because there was sufficient indicia that the BIA did not consider the limited equitable exceptions to the timely filing of appeals.

Conclusion

The court granted the petition for review, vacated the BIA's order denying reconsideration, and remanded the case to the BIA for proceedings consistent with this opinion.

The court granted the petition for review, vacated the BIA's order denying reconsideration, and remanded the case to the BIA for proceedings consistent with this opinion.

Who won?

Petitioner prevailed in the case because the court found that the BIA did not properly consider the circumstances surrounding the untimely filing of his appeal.

Petitioner prevailed in the case because the court found that the BIA did not properly consider the circumstances surrounding the untimely filing of his appeal.

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