750 F.3d 951
1st Cir.2014Background
- Donnee, a Haitian national, was paroled into the U.S. in 1995 for up to two years and later overstayed.
- In 2009, DHS served a Notice to Appear charging removability; Donnee admitted removability at an immigration hearing in July 2009.
- He sought adjustment of status based on a spousal petition; after several continuances, a December 2010 hearing was held in his absence and he was ordered removed in absentia.
- Donnee, through counsel, moved to reopen arguing that TPS designated Haiti in January 2010 and that TPS status rendered him non-removable or justified administrative closure.
- The IJ denied reopening, explaining TPS provides temporary relief from removal but does not make a recipient admissible and does not change the removal order; the BIA affirmed.
- The court reviews a motion to reopen for legal error or irrational handling, with factual findings reviewed for substantial evidence; TPS does not nullify an existing removal order and does not by itself necessitate reopening.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does TPS establish eligibility to reopen proceedings to terminate or administratively close a removal case? | Donnee argues TPS stops removability and warrants reopening. | BIA/DHS says TPS only delays execution, not validity of the order; does not justify reopening. | No; TPS does not justify reopening or administrative closure. |
| Does TPS affect the validity of the removal order itself? | Donnee contends TPS removes the basis for removability. | TPS prohibits execution during designation but does not undermine the order's validity. | TPS does not affect the validity of the removal order. |
| What is the proper standard of review for a motion to reopen? | Petitioner argues for error-based review. | Agency findings upheld if supported by substantial evidence; legal errors reviewed de novo. | Legal questions reviewed de novo; factual findings reviewed for substantial evidence. |
Key Cases Cited
- Tawadrous v. Holder, 565 F.3d 35 (1st Cir. 2009) (denial of motion to reopen standard of review; arbitrary or irrational actions reviewed)
- Tandayu v. Mukasey, 521 F.3d 97 (1st Cir. 2008) (motions to reopen disfavored; finality and expeditious processing interest)
- Guerrero-Santana v. Gonzalez, 499 F.3d 90 (1st Cir. 2007) (public policy and finality interests in removal proceedings)
- Jutus v. Holder, 723 F.3d 105 (1st Cir. 2013) (prima facie case required with material evidence not available at prior hearing)
- Guerrero v. Holder, 667 F.3d 74 (1st Cir. 2012) (TPS does not preclude initiation of deportation; only prevents execution during designation)
- Matter of Sosa Ventura, 25 I&N Dec. 391 (BIA 2010) (TPS does not render recipient admissible or terminate removal; not a basis to reopen)
- Matter of Sosa Ventura, 25 I&N Dec. 396 (BIA 2010) (reaffirmed that TPS does not warrant reopening for termination of removal)