Metropolitan News-Enterprise


Friday, April 23, 2004


Page 3


Ninth Circuit: Due Process Limits Reach of Immigration Waiver Rule


By a MetNews Staff Writer


A regulation under which even brief departures from the United States operate to withdraw appeals of deportation decisions cannot constitutionally be enforced against an immigrant who was not notified about the consequences, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Senior Judge Betty B. Fletcher said it would violate due process to apply 8 C.F.R. Sec. 1003.4 in the case of Higinia Martinez-de Bojorquez, who testified she made several brief visits to Mexico for medical treatment while appealing an immigration judge’s determination she was deportable.

Though Martinez was a lawful permanent resident whose children and grandchildren were U.S. citizens, the IJ found she was deportable because she had helped a cousin enter the country illegally. Martinez testified she went to see the doctor in Mexico because her insurance paid a greater portion of the fee there.

The regulation 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.”

Fletcher conceded that the Ninth Circuit ruled last year in Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, that the attorney general had statutory authority to enact the regulation and that it covered even “brief, casual, and innocent” departures from the country. But that case did not consider a due process challenge to the regulation, she pointed out.

Fletcher declared:

“When she filed her appeal with the BIA, Martinez received a number of notifications regarding the process, but at no time was she told that her appeal would be forfeit if she went to Mexico even briefly. The BIA then took four-and-a-half years to decide her appeal, a substantial amount of time during which it is not unreasonable for a legal permanent resident to have to travel outside the country.”

 Martinez’s absences were short and involved only trips within a few miles of the border, Fletcher noted.

Citing Padilla-Agustin v. INS, 21 F.3d 970, 977 (9th Cir. 1994), the judge wrote:

“We hold that the ‘concatenation’ of circumstances in this case, but particularly the undisputed fact that Martinez was never warned about the severe consequences that even a brief departure from the United States would have on her case, constitute a violation of due process.”

The burden on immigration authorities of providing immigrants with specific notice of the potential consequences of leaving the country while their cases are on appeal would not be substantial, Fletcher opined, adding:

“While we do not decide what type of warning would be appropriate under the circumstances because it is clear from the record that no notice was given to Martinez, we are confident that providing notice to a person such as Martinez would result in minimal cost to the government. Providing such notice, however, would go a long way in remedying the inequities that the application of 8 C.F.R. [Sec.] 1003.4 can cause.”

It was clear Martinez was prejudiced by the constitutional violation, Fletcher said, since the IJ stated at a 1998 hearing after remand from the Board of Immigration Appeals that he would have been inclined to grant discretionary relief from deportation but for the bar of the regulation.

Judge Harry Pregerson and Senior Judge Melvin Brunetti concurred.

The case is Martinez-de Bojorquez v. Ashcroft, 02-73014.


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