In a recent published decision, the Sixth Circuit Court of Appeals held that an appeal that is pending before the BIA is not automatically withdrawn when DHS deports the non-citizen before the BIA issues a decision on the appeal. 8 C.F.R. § 1003.4, which provides:
“Departure from the United States of a person who is the subject of deportation proceedings subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.”
The non-citizen in Madrigal was ordered removed in absentia, then filed a motion to reopen proceedings. Id. at 2. That motion to reopen was denied by the IJ. The non-citizen timely appealed to the BIA. Id. While her appeal was pending she received a notice from DHS ordering her to leave the USA by September 10, 2007. On August 24, 2007 she filed with the BIA a motion to expedite and a motion to stay removal pending disposition of her appeal. Id. “Before the Board ruled on either motion, the Department of Homeland Security executed the outstanding removal order, and she was deported to Mexico.” Id. In January 2008, the BIA, pursuant to 8 C.F.R. § 1003.4, “held that the petitioner’s appeal of the immigration judge’s decision denying her motion to reopen had been automatically withdrawn” at the moment that she departed the USA. Madrigal, slip op. at 3. As a result, the BIA dismissed the appeal and the IJ’s order became final. Id.
After dismissing the government’s arguments that it lacked jurisdiction because a final order of removal had not been entered and because the non-citizen had not exhausted her administrative remedies prior to withdrawing her appeal, the Sixth Circuit addressed the BIA’s withdrawal order. Id. at 6. The Court acknowledged that, on its face, § 1003.4 “does not distinguish between volitional and non-volitional departures.” Id. at 6-7. Nonetheless, the Sixth Circuit was guided by a Fifth Circuit decision, Long v. Gonzales, in which the Fifth Circuit “recognized that ‘waiver is an intentional relinquishment or abandonment of a known right or privilege’ applicable to the operation of the [§ 1003.4] withdrawal provision.” Long v. Gonzales, 420 F.3d 516, 520 (5th Cir. 2005); see Madrigal, slip op. at 7. As the Sixth Circuit explained,
“drawing on the Fifth Circuit’s waiver analysis, we are persuaded that the withdrawal provision should not be applied in this case. Unlike the cases in which the petitioner either deliberately or inadvertently left the United States, it cannot be said that Madrigal relinquished or abandoned the right to appeal by virtue of her own conduct. Instead, her departure was forced by the government during the pendency of her appeal and, hence, she did not take any action, either purposeful or unwitting, that can be construed as a waiver of her right to contest the immigration judge’s decision.” Id. at 8.
In addition, “principles of fundamental fairness would be violated were we to find, in every case, that section 1003.4 is applicable to pending administrative appeals following the departure of removable aliens regardless of the circumstances of their removal.” Id. As such, the Sixth Circuit held that § 1003.4 was not applicable in this case. Id.
Trying to slow DHS’s rush to deport our clients, even when an appeal is pending, is a constant struggle for many immigration attorneys. This decision of the Sixth Circuit is a promising outcome that hopefully will be followed by other circuits.