SOLIS-CHAVEZ v. Holder
662 F.3d 462
7th Cir.2011Background
- Solis-Chavez, a Guatemalan native, has been a lawful permanent resident since 1980.
- He faced removal based on a 1989 Illinois conviction for aggravated criminal sexual abuse of a minor.
- A JRAD was issued by the sentencing judge, but Solis-Chavez’s attorney conceded it was untimely (outside the 30-day window) before the IJ rendered a decision.
- The BIA found the concession waived the JRAD defense and Solis-Chavez pursued review.
- The Seventh Circuit granted the petitions, holding the JRAD could be valid despite the missed deadline and remanded for further due process analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| JRAD validity and due process | Solis-Chavez contends the JRAD was valid despite untimeliness. | DHS/BIA argued the JRAD was untimely and thus invalid. | JRAD valid; remand to assess due-process impact of counsel's concession. |
| Effect of counsel's concession on due process | Concession prejudiced Solis-Chavez by waiving a complete defense. | Concession was not prejudicial since JRAD was untimely anyway. | Remand to determine whether concession amounted to ineffective assistance under Lozada. |
| Motion to stay removal to permit naturalization | BIA failed to address stay to allow naturalization; Hidalgo limits stay absent prima facie eligibility. | Hidalgo precludes stay absent DHS prima facie eligibility; BIA need not decide stay. | Remand to address Hidalgo issue and whether stay was improperly overlooked. |
| Section 212(c) eligibility | JRAD evidence could reflect reliance on §212(c) relief under St. Cyr. | St. Cyr limitations apply; retroactive 212(c) relief not available outside its narrow context. | No retroactive §212(c) relief under current framework; no remand on this issue. |
| Equitable estoppel against government | Government delay and conduct could estop removal. | Estoppel against the government is limited; delays alone do not establish it. | Estoppel rejected; no basis to bar removal; remand limited to other issues. |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010) (Sixth Amendment and counsel duties in immigration context)
- Janvier v. United States, 793 F.2d 449 (2d Cir. 1986) (JRAD and deportation consequences)
- Dolan v. United States, 560 U.S. 607 (U.S. 2010) (missed deadline did not extinguish court power; restitution example)
- Cerujo v. INS, 570 F.2d 1323 (7th Cir. 1978) (notice and retroactive JRAD considerations; directory vs mandatory)
- Perriello v. Napolitano, 579 F.3d 135 (2d Cir. 2009) (regulatory Hidalgo issues and naturalization stay complications)
- INS v. St. Cyr, 533 U.S. 289 (U.S. Supreme Court 2001) (retrospective §212(c) relief limits)
- Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (standards for due process and ineffective assistance considerations)