Summary
The Ninth Circuit held that an immigration judge may not deny an alien the statutory opportunity to designate a country of deportation or treat that error as harmless based on a prediction that the designated country would not accept the alien. The court also held that the record showed a reasonable possibility that Bui was eligible to seek relief under Immigration and Nationality Act sections 212(h) and 245, requiring the immigration judge to inform him of that potential relief. The court granted the petition for review, remanded for further proceedings, and awarded attorney's fees and costs under the Equal Access to Justice Act.
Topics
Practice areas
Questions Presented
- Whether the Immigration and Naturalization Service could deny Bui the statutory and regulatory opportunity to designate a country of deportation and then deem the error harmless based on a prediction that the designated country would not accept him.
- Whether the immigration judge was required to inform Bui of his apparent eligibility for relief under 8 U.S.C. §§ 1182(h) and 1255(a).
- Whether Bui was entitled to attorney's fees and costs under the Equal Access to Justice Act.
Holdings
- The INS may not deny an alien the opportunity to designate a country of deportation and may not rely on a prediction about whether the designated country would accept the alien to deem that error harmless.
- The immigration judge erred by failing to inform Bui of his apparent eligibility to seek relief under 8 U.S.C. § 1182(h) in connection with adjustment of status under 8 U.S.C. § 1255(a).
- Bui was entitled to attorney's fees and costs for the appeal under the Equal Access to Justice Act because the INS's position was not substantially justified.
Key quotations
“We hold that the INS may not deny an alien this opportunity nor rely upon such a prediction, and we grant the petition for review.” (¶ 1)
“Because the INS must wait a reasonable time for the designated country to accept, reject or ignore an alien's application before deporting the alien to another country, an IJ may not rely upon a prediction of which country may or may not accept the alien.” (¶ 4)
“Because the record demonstrates a reasonable possibility of eligibility for section 212(h) relief, we grant the petition for review, reverse the BIA's dismissal of Bui's appeal of the IJ's failure to inform him of this relief, and remand for a new deportation hearing.” (¶ 11)
Factual background
Bui, a native and citizen of Vietnam, entered the United States with his mother and seven siblings in 1991 as a lawful permanent resident. After pleading guilty to robbery and receiving a 34-month sentence, he was placed in deportation proceedings and represented himself at a brief hearing. The immigration judge ordered deportation to Vietnam without giving Bui an opportunity to designate another country and without informing him of possible relief under sections 212(h) and 245.
Procedural history
Bui, a Vietnamese lawful permanent resident, pleaded guilty to robbery and received a 34-month sentence. The immigration judge ordered him deported to Vietnam without informing him of his right to designate a country of deportation and without advising him of apparent eligibility for relief under sections 212(h) and 245. The BIA recognized the designation error but deemed it harmless and found no reasonable possibility of eligibility for relief. The Ninth Circuit granted the petition for review, reversed the BIA's dismissal as to both errors, remanded for a designation and a new deportation hearing, and awarded attorney's fees and costs.
Remand instructions
Remand for Bui to be afforded an opportunity to designate a country of deportation and for a new deportation hearing addressing his apparent eligibility for relief under sections 212(h) and 245.