NIJC and pro bono partner McDermott Will & Emery, filed a petition for review at the U.S. Court of Appeals for the Fifth Circuit, on behalf of a man from Mexico. Mr. Mejia entered the United States almost 40 years ago and quickly established roots in Chicago. He and his longtime U.S. citizen partner married in 2007 in Chicago and together they have two U.S. citizen daughters who are in their mid to late twenties. As the only person in his family without legal status, Mr. Mejia began the process to obtain permanent lawful resident status, and in 1988, was granted temporary resident status as an initial step. Mr. Mejia never continued the process to obtain his permanent residence status, and so when his temporary resident status expired sometime in 1990 or 1991, Mr. Mejia was left without any status at all.
In 2008, Mr. Mejia pleaded guilty to mail fraud and was sentenced to five years probation and 12 months home monitoring. A few years later, DHS issued Mr. Mejia a Notice to Appear, stating he was removable as a lawful permanent resident who had committed an aggravated felony. This was incorrect, as Mr. Mejia never made the steps to obtain his lawful permanent resident status, and had only ever received temporary lawful permanent resident status. However, in proceedings, Mr. Mejia’s attorney never pointed out this error to the court and so instead of applying for § 245 adjustment of status with a § 212(h) waiver of inadmissibility, Mr. Mejia simply entered an application for voluntary departure. The IJ denied his application, and ordered Mr. Mejia removed on May 10, 2011.
Mr. Mejia subsequently discussed his case with another attorney, who noticed the previous attorney’s error concerning Mr. Mejia’s immigration status. Mr. Mejia filed a motion to reopen with the IJ, citing ineffective assistance of counsel. The IJ denied his motion, and DHS removed him to Mexico that same day. Mr. Mejia timely appealed to the BIA, arguing again that his ineffective assistance of counsel had prejudiced him. The BIA granted his appeal on December 2, 2011, and remanded the case to the IJ. A month later, and six months after DHS had removed him, DHS filed a motion to reconsider with the BIA, raising for the first time that the BIA didn’t have jurisdiction because Mr. Mejia had been removed to Mexico. The BIA granted the motion, and vacated its earlier decision.
Mr. Mejia presented four central points in his argument before the Fifth Circuit, In his first two points, Mr. Mejia argued that the plain language of 8 C.F.R. § 1003.3(e) does not bar his appeal. First, he did not waive his right to appeal as he was forcibly removed. Second, the BIA’s interpretation of § 1003.3(e) is invalid because it reaches beyond Congress’s authorization and deprives the BIA of jurisdiction when DHS deports an alien before they timely file their appeal. Third, because DHS did not challenge the BIA’s jurisdiction until after the BIA had granted his appeal, Mr. Mejia argued that DHS is barred by res judicata. Lastly, Mr. Mejia argued that DHS’s motion is also barred by BIA precedent preventing “piecemeal” litigation, as DHS’s argument could have been raised earlier in the proceedings. Matter of Medrano, 20 I. & N. Dec. 216, 219-20 (BIA 1991). Mr. Mejia asked that the court vacate the BIA’s second decision, and remand the case to the BIA for it to reinstate its initial decision.
Mr. Mejia filed his brief on August 15, 2012. The government filed a motion to remand the case on November 5, 2012 and the motion was granted on January 2, 2013. Mr. Mejia was represented by Nicholas Grimmer, Adam Allgood, Scott Clark, and Donna Haynes of McDermott Will & Emery; and NIJC’s Chuck Roth and Claudia Valenzuela.