KURZBAN’S INOHGRATION LAW SOURCEBCAy [Finding LPRs departure during INS appeal does not result in dismissal for mootness or rounds that appeal is withdrawn, Deperture prior to appeal but subsequent to decision also ee stitutes withdrawal. 8 C.F.R. §1003.3(e); 8 U.S.C. §1101(g). Departure or deportation after fin, a motion fo reopen or reconsider is deemed a withdrawl, Nori @ motion to reopen or recosie permitted to be filed if person has departed the US. 8 C.ER. §1003.2(@), Navarro-Miranda Tisheraft, 330 F-3d 672 (Sth Cit. 2003) [Finding §1003.2(d) a reasonable construction and ro conflict with §1003.2(0) allowing for sua sponte reopening): See also Patel v. U.S. Atoray General, 334 F 3d 1259, 1261-63 (1th Cir. 2003) [Court of appeals lacked jurisdiction besa ofthe criminal alien bar under INA §242(a\(2)(C) to review the denial of motion to reopen nig SCHR. 1003.26) where the person was out ofthe country and the distriet court lacked habes Fisdition because the person was no longer in custody]. But see Wiedersperg v. INS, 896 24 1179 (Sth Cir. 1990) [Where conviction vacated after respondent deported, he could seek ream} Withdrawal or self-deportation generally does not occur where person left after OSC had isu bit before deportation hearing occurred. Mrvicav. Espend, 376 US. $60, 563 (1964). Howevy, the I) may enter an order in absentia, Joo. INS, 813 F.2d 211 (Oth Cit. 1987), See Chap Section (X)PX3)(U). But section 8 C.F. §1003.3(4) bars only persons who depart fr renal proceedings begin. Sing vx Gonzales, 412 F.3d 1117, 1120-21 (Sth Cit. 2005) [Person hod pars before removal proceedings are initiated and seeks motion to reopen to vacate in also Drder isnot bared by §1003.2()) The BIA takes a different view in former exclusion proceedings. Matter of Keye, 20 18N Da: 158 (BIA 1990) Mater of Kennedy, 13 1&N Dec. 242 (BIA 1969). In Kevt, the BIA held hate departure of an applica: in exchsion during appeal éoes not consttte withdrawal and ds at moot the appeal, See also Matter of Morales, 21 I&N Dec. 130 (BLA 1996) (on rehearing) [Ded clined to vacate as moot an interlocutory decision that was made ater excludable person ves 4 ported), In addition, departure does not moot request for former INA. §212(¢) relief ewe Seportaion Mater of Brown, 18 I&N Dec. 324 (BIA 1982) of where DHS secks review ofl finding respondent not deportble. Mater of Luis-Rodrigus, 22 IGN Dec. 147 (BIA 193, sce Mutter of Okoh, 20 18 Dee, 864 (BIA 1994) [BIA las no jorndeion to decide motion Consider after applicant excluded and deporte), 4 . Reinstatement of Voluntary Departure 1. The BIA will seinstate voluntary departure that expired during the course of the respondent 3¢4 rinisrative appeal unless: (I) the respondent failed to post the necessary $500 bond within Sa Of the 1/’s order on VD; or (2) there are specific reasons nat to reinstate the 1's orders ffivolous appeal or one filed for delay. Matter of A-M-, 23 1&N Dec. 737,742-44 (BIA 208) [Matter of Chouliaris followed and BIA will reinstate voluntary departure for up to 60 és gave 60 days but cannot give a greater time than IJ ordered, However, reinstatement wil ‘ranted only if respondent posted the $500 required within 5 days of the 1J's order| Matera Chouliaris, 16 I&N Dec. 168 (BLA 1977); Matter of Patel, 19 1&N Dec. 394 (BIA 1986) [Nowy instatement where appeal is frivolous]: Marer of -P-, 20 1&N Dec. 230 (BIA 1990) [Rea tment of voluntary departure denied where respondent granted 6 months voluntary depart no other relief requested} The circuit courts are divided as to whether a respondent whose case the BIA reopens hs i the terms of hevhis voluntary departure by filing to depart during the voluntary departure Fe Compare Azarie v. Ashcroft, 394 F.3d 1278, 1288-89 (Sth Cir. 2005) [Holding that a motion ‘open filed within the VD period, coupled with request fora stay of removal, tolls the VD Se etat respondent isnot barred from cancellation of removal for having filed to depart al ¥. Gonzales, 424 F.3d 330 (3d Cir, 2008) [Agresing with Azarte; and Sidithowya v. GOH 407 F.3d 950 (Sth Cir. 2005) [Same] with Banda-Ortiz v. Gonzales, 2006 WL 774925, Nt 61100 (Sth Cir, Mar. 28, 2006) [Holding that BIA’s decision to reopen case does not cure 9S dent’ failure to depart during the voluntary departure period) D. Motion Practice 1. The BIA has regulations governing motion practice in cases over which it last exercise tion, 8 CFR. §1003.2, Motions are filed directly with the BIA. 8 CFR. §1003.22) 3 is a matter initially adjudicated by a service officer (e.g. I-]30) in which case it shall be sie the office having control over the record. § CFR. §1003.2(gX2)i). All motions mss iKURZBAN'S INMIGRATION LAW SOURCEBO farther fact finding was required to determine whether an asylum application should be pe. 4 fermtied under INA §241(6)G)]- But see Matter of Rodriguez-Carrillo, 22 1&N Dec. 103 (BIA 1999) [Distinguishing Maver of A-P- and finding additional proceedings were unnece. sary even where respondent did not concede removability} Self-Deportation—A person can only “self-deport if se Teaves the US. after an ore of Scponaton has been entered. 8 CER. §6281,7, 12417; 8 USC. S101) Mra 4 epenay. 376 US, 560, 363 (1964). However, an in absentia onder maybe entered whet a. aaa cd with OSC and then fails to appear and court may thereafter decline to review te ser Jon y INS, 813 F-24 211 (Oth Cit. 1987). The BIA has also held that someone wig reat entered the US. but wishes to eave may beheld for removal proceedings, Mater terra scien 22 I&N Dee. 833 (BIA 1999) [Person seeking to leave U.S. within 24 house Teal enty held for removal proceeding forfour years on grounds that Sec, of Slate de mined his presence would have serious foreign policy consequences) Deportation by Stipulation Parties can now stipulate to deportation “which shall continues 4 Conclusive determination” of removability. INA §240(¢), 8 U.S.C. §1229a(4). Collateral Estoppel-Applies in deportation proceeding where citizen's denaturation pr seein in federal cout raised same issues as to misrepresentation ona vis Kairs I, 4 Ser rd 937 (Tih Cir. 1992), Schellong v INS, 805 F.2d 655 (7th Cit. 1986) othe sae teat tatters Scchinsky v. Attorney General ofthe U.S, 432 F.3d 253 (3d Cir. 2005) [Fore aaa aon camp guard and SS member who was denaturalized for illegal procurement mi cetera estopped fom aserting he did asit in the persecution of others], Dade US aes Gonoral, 387 Fd 1335, 1342-43 (11th Cir. 2004) [Where Lithuanian was dati saa for illegally procuring bis citizenship because he did not qualify s a displaced pes Jus to his persecution of Jews, the record of the denaturaization proceeding was admitein Gnigration coor and used to determine removal by collateral estoppel; Hanne ». 19S 1 3d 836, £40-42 (6th Cir, 1999). But see Palciauskas v. INS, 939 F.2d 963 (1 Ce 1901) [Reverded deportation order finding denaturlization proceeding did not collateral top reapondent fn deportation), The doctrine has also been applied to bar relitigaton nd reon proveedings where issue of entry was raised and decided in district court cas inl ‘Repornden's adjustment. Ramsay v. INS, 14 F-34206 (4th Cir, 1994), The doctrine a tom applied ina deportation proceeding to the question of aienage where the respondent a prior erminal conviction and a finding of alienage was essential to that conviction Het 4 FINS, 930 F.2d 432 (Sth Cir. 1991); but see Duvall v. Attorney General ofthe United se £34 382, (34 Cir. 2006) [Although collateral estoppel applies in immigetion ps igs baring the reliigation of alienage, itis « exible concept andl does not apply wet ey deportable person continues to commit criminal acts after intial proceedings seared) However, a finding of alionage in a deportation proceeding cannot be wd Tent estop 2 defendant in a criminal proceeding where aienage isan clement of Oe oi Diy Mesa Soria, 935 F.2d 166, 169 (Sth Cir. 1991) [Prior deportation order does og Tsay cotnp defendant in 8 U.S.C. §1326 prosecution from arguing he sa USC) Te deter ees ceroppel can only apply where: (1) the issue at stake is identi! dnvolved in the prior litigation; (2) the issue was actually litigated inthe prior SSC gag {G) the determination of te issue in the prior litigation was critical and neces a tear that earlier ation. Palciankasv. INS, 939 F.24 963 (11th Cit. 1990. a Judgment tnavecaary and esental” to prio action, it cannot be used to coleteely 8 arty. Santana-Albarranv. Asherft, 393 T-38 699, 703-05 (6th Cit. 2005) [AG aa cepned fom arguing respondent did not prove he entre the U.S. in 1985 Sete ‘of cancellation despite U's finding on removal charge that he entered EWI in 1985 that date was not necessary and essential to find removability]. aa, Filing Documents—Where applicant fails to timely file applications o» document aT se One 31, Green» INS, 46 F.3d 313 (34 Cit. 1995) [An INA 821200 2 acer pendened when counsel failed ofl it timely]; Mazer of Villareal are deemed OO TBIA. 3006) TAdiustment application deemed abandoned when 9 DE, Metter of Shan, 23 1&N Dec. 754, 764-65 (BIA, 2005) [Upheld deni te eceed for falure 0 timely file application), But see Louis Maat