Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
One Practice. One Focus. One Passion: Immigration Law.

Re-Open Your Cancellation Of Removal Case Before The Board Of Immigration Appeals—Now

If you were granted cancellation of removal by the immigration judge, the government would certainly have appealed to the Board of Immigration Appeals. And, chances are, the Board would have "sustained" the government's appeal and ordered you and your family removed ("deported").

If you were fortunate enough to have a competent appellate lawyer, a Petition for Review would have been filed with the United States Court of Appeals for the Ninth Circuit or elsewhere. If you didn't, you're lawyer would have advised you to file a makeshift petition for writ of habeas corpus before the United States District Court, challenging the Board's decision.

So, if you have a case pending at the Ninth Circuit Court of Appeals pertaining to the Board's granting the government's appeal, or your case is presently pending, your lawyers must act. And, they must act now.

On December 28, 2004, the Court of Appeals decided the case of Lorenzo Molina-Camacho v. John Ashcroft. In this case, the Court was confronted with the scenario mentioned above, namely: a family was granted cancellation of removal by the immigration judge, the government timely appealed and the Board granted the government's appeal and ordered removal.

Elaborating on its holding in Noriega-Lopez v. Ashcroft, the Court of Appeals held that the Board was acting contrary to statute and regulation and did not have the power to order persons removed who were previously granted cancellation of removal. Instead, were the Board to grant the government's appeal-that the hardship standard for cancellation of removal was not met in the immigration court-all the Board could do was to send the matter back to immigration court for reconsideration.

So, complicated case-law aside, here's what needs to be done: (1) If the government's appeal of your cancellation case is pending before the Board, your lawyers should request that the Board take judicial notice of the new case; (2) if your case has been unfavorably decided by the Board and is pending before the 9th Circuit, you should move to reopen your case. If your family has already departed the United States, district court action should be pursued. Certainly, timing issues will apply to the motion to reopen and the motion should be aggressively pursued.

Lastly, it is your lawyers that should be informing you of this decision, not you informing them. It is my humble prediction that after your lawyers read this article, they (or your paralegal) might be giving you a call. If they don't, should ask yourself if your lawyers are aware of what's going on with your case.

Lawyers You Can Trust

Our Office Locations

Orange Office
333 City Boulevard West
Ste. 1918
Orange, CA 92868

Toll Free: 800-352-7034
Phone: 714-919-8880
Orange Law Office Map

Sacramento Office
2730 Gateway Oaks Dr.
Ste. 110
Sacramento, CA 95833

Toll Free: 800-352-7034
Phone: 916-643-4657
Sacramento Law Office Map

Riverside Office
3403 Tenth Street
Ste. 742
Riverside, CA 92501

Toll Free: 800-352-7034
Phone: 951-787-0010
Riverside Law Office Map

Salt Lake City Office
675 E 2100 S, Suite 300
Salt Lake City, UT 84106

Toll Free: 800-352-7034
Phone: 801-594-9999
Map & Directions

Orem Office
1145 South 800 East
Orem, UT 84097

Toll Free: 800-352-7034
Phone: 801-594-9999
Map & Directions

San Bruno Office
1001 Bayhill Drive, Ste. 200
San Bruno, CA 94066

Toll Free: 800-352-7034
Phone: 650-243-0475
Map & Directions

Boise Office
950 W Bannock Street
Ste 1100
Boise, ID 83702

Phone: 208-391-2020
Fax: 208-485-7969
Map & Directions