An individual trying to reopen their removal matter due to an invalid conviction was originally denied due to missing the filing window. The person did not file the challenge within the 90-day filing period after the removal of the conviction. Waiting beyond the end of the required period originally ended the person’s ability to challenge their removal.

The individual claims that the Board of Immigration Appeals (BIA) could waive the delay as it took ten years to remove the underlying conviction from their records. However, the ninth circuit disagreed. The federal rule giving the BIA the ability to consider reopening previously executed deportation orders is only available to individuals who submit the request within 90 days after the removal order is issued. The rule is intended to limit the options available to individuals who have already been removed, per the three-judge panel of the ninth circuit court.

The requirements to reopen a removal order outside of the 90-day window are well outlined in both the statute and regulations. Among the options are changes in country conditions, spousal battering, and removals in absentia. The simple fact that the exception for the removal of a conviction is not included in that list shows that the intention of Congress and the agency is the 90-day rule is to be enforced for conviction removals.

Further, the individual failed to show why they did not make an effort to reopen the removal order sooner. The individual should have shown they were making every possible effort, with appropriate diligence, for any possible consideration. Both the BIA and the Ninth Circuit support that finding.

However, the individual was able to take advantage of some allowances for first-time convictions for drug offenders, the basis of the criminal charge. As such, the Ninth Circuit sent the case back to the BIA and stated the individual can take advantage of this basis and have his matter reopened.

The 90-day filing requirement was upheld, however, the secondary effort citing allowances for first-time drug offenders under certain qualifying circumstances was allowed.

Working with an experienced and qualified attorney, individuals may find other approaches to the law in order to see a positive outcome. If you have questions about any immigration-related issue, contact us.