Tuesday, January 11, 2011

Ninth Circuit reaffirms Government's Power to Reopen Proceedings

Perez v. Holder No. 06-74403, No. 08-74373

United States Court of Appeals for the Ninth Circuit

2010 U.S. App. LEXIS 26497


Mr. Perez, a native of Panama, appealed an Immigration Judge's grant of the government's motion to reopen Mr. Perez's deportation hearing and subsequent finding that he was not eligible for cancellation of removal. The Ninth Circuit ruled that the BIA did not err in permitting the government to file more than one motion to reopen because 8 CFR Sec. 1003.23 exempts the government from the time and numerical limitations on motions to reopen.  The court further held that neither equitable estoppel nor laches disallowed the government from filing a motion to reopen in this instance.  Mr. Perez did not demonstrate affirmative misconduct on the part of the government. Moreover, The use of a conviction which was available in previous removal proceedings, but not used, is not barred by res judicata when combined with a new conviction in new proceedings. See Poblete Mendoza v. Holder 606 F3d 1137(9th Cir. 2010)

Thus the subsequent finding by the immigration court that Mr. Perez did not qualify for cancellation because he had not accrued ten years of physical presence prior to April 1, 1997, (when IIRIRA went into effect), but after the commission of an act or the assumption of status constituting a ground of deportation (his conviction for a controlled substance offense on May 8, 1987) was upheld.



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