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Sosa Ventura, Matter of

Facts

In 1995, Donnee was temporarily paroled into the United States from Haiti for a period not to exceed two years. He overstayed and, after being charged with several state criminal violations, was served with a Notice to Appear by the Department of Homeland Security (DHS) in March 2009. Donnee admitted the allegations and conceded to removability at a July 2009 hearing. After failing to appear at a scheduled hearing in December 2010, the Immigration Judge ordered him removed to Haiti. Donnee later filed a motion to reopen the proceedings based on his grant of Temporary Protected Status (TPS), which was denied by the IJ and subsequently by the BIA.

In 1995, Donnee was temporarily paroled into the United States from Haiti for a period not to exceed two years. Donnee overstayed. In March 2009, after he had been charged with several state criminal violations, the Department of Homeland Security (DHS) served him with a Notice to Appear, charging him with removability.

Issue

Did the BIA err in denying Donnee's motion to reopen his removal proceedings based on his grant of Temporary Protected Status?

Donnee argues that the BIA committed legal error when it refused to reopen his removal proceedings so that they could be administratively closed based on his grant of TPS.

Rule

A denial of a motion to reopen will be upheld unless the complaining party can show that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way. Additionally, motions to reopen removal proceedings are disfavored as contrary to the compelling public interests in finality and the expeditious processing of proceedings.

A 'denial of a motion to reopen will be upheld 'unless the complaining party can show that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way.'

Analysis

The court applied the rule by reviewing the BIA's findings and concluded that Donnee did not demonstrate a prima facie case of eligibility for the relief sought. The BIA correctly ruled that TPS only served to prevent execution of the removal order and did not affect the validity of the order itself. Therefore, the court found no error in the BIA's decision to deny the motion to reopen.

Here, although Donnee did not receive his TPS notice until after the hearing (which he did not attend), the BIA correctly ruled that TPS only served to prevent execution of the removal order in any event; it did not affect the validity of the order.

Conclusion

The court denied Donnee's petition for review, affirming the BIA's decision that there was no error in denying the motion to reopen the removal proceedings.

As we find no error, the petition for review is denied.

Who won?

The prevailing party is the government, as the court upheld the BIA's decision to deny Donnee's motion to reopen based on the lack of legal error.

The prevailing party is the government, as the court upheld the BIA's decision to deny Donnee's motion to reopen based on the lack of legal error.

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