A federal appeals court has ruled that a pair of illegal aliens can remain in the United States for now because of a “legal error” made by the Biden Justice Department.
The case, Cortez v. United States Attorney General Pam Bondi, concerns a Salvadoran woman and her minor son.
They both entered the country illegally via the open Southern Border in 2021.
They “admitted that they were removable” to the immigration judge but sought relief from deportation on various grounds.
When they were denied, they asked the Board of Immigration Appeals (BIA) to review the judge’s decision.
The Tenth Circuit Appeals Court sent the case back to the Board of Immigration Appeals (BIA), finding the board was wrong to reject petitioners’ appeal because their lawyer did not provide a signed proof-of-service.
“The BIA’s rejection of Petitioners’ motion for reconsideration was predicated on an error of law and must be set aside,” the court stated in its opinion.
Immigration judges are part of the Justice Department.
They have broad discretion to “determine removability, excludability, or deportability” and to accept or reject applications for relief from deportation.
When appeals have been exhausted in immigration court, aliens can seek judicial review in the federal court system, which is what happened here.
On June 21, 2022, the immigration judge denied petitioners’ requests for relief and ordered them to be deported back to El Salvador.
An alien who receives an unfavorable ruling has 30 days to make an appeal to the Board of Immigration Appeals (BIA) or the judge’s decision becomes final.
Towards the end of the 30-day window, the petitioners filed the appeal using the government’s electronic system.
It was rejected by the Board of Immigration Appeals, which said a signature was missing for proof of service.
However, the Tenth Circuit found that the BIA erred “as a matter of law” because the appeal was filed electronically.
The court concluded that petitioners complied with the “most reasonable interpretation” of the instructions on the form, which notes that a signature is needed “if applicable” and that electronic filers are not required to serve the opposing party, i.e., the government.
The Trump administration provided official documents that it says support the signature requirement, but the court reasoned that due process concerns should take precedence.
“Even if we accepted this argument, due-process concerns would make us hesitate to penalize Petitioners for complying with the most reasonable interpretation of the form’s instructions,” the court wrote.
“But we need not address that issue because we do not accept the government’s interpretation of its document.”
The illegal aliens in Cortez v. United States Attorney General Pam Bondi have now managed to remain in the United States three years past their original deportation order.
Thanks to the government’s apparent mistake, they now have another opportunity to continue gaming the system.
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