Immigrant Loses Appeal Based On Unwritten BIA Rule

In Ajose v. Gonzales, No. 03-4243 (7th Cir. May 18, 2005), the Seventh Circuit affirmed a ruling by the BIA (The Board of Immigration Appeals) to reject an immigrant's motion to reopen an appeal because the lawyer failed to file it within 90 days of a decision that he never received.

The BIA dismissed the immigrant's appeal because the lawyer did not file a brief by the deadline. It sent out a notice by regular mail. The BIA did not know that the lawyer's firm had dissolved and he moved to another address and one of his former colleagues who was staying at the same address would forward all mail addressed to him.

The attorney who moved, though, failed to call or write to the BIA to let the BIA know. The BIA has extensive rules and regulations, but there is no requirement to let them know of address changes. The Seventh Circuit, though, ruled that there is an inflexible unwritten rule that attorneys must inform the BIA whenever their address changes. In fact, there is also an inflexble unwritten rule that attorneys must inform the BIA before the address changes so that the BIA can make the change if a decision is issued on the same day the lawyer moves. Also, there is an unwritten requirement that any lawyer who moves should regularly call the BIA's number to check whether anything new happened in the case (just in case something gets lost in the mail).

Because it is the lawyer's fault for not complying with all these unwritten rules, the immigrant's motion to reopen was properly denied by the BIA, ignoring all of the merits and details contained in the motion to reopen.

The Seventh Circuit also ruled that in its opinion, the 30-day deadline to file a petition for review is inflexible and jurisdictional. If true, this means if a lawyer makes a mistake and misses the 30-day deadline even due to reasons out of its control, the immigrant is out of luck and loses the chance to file a petition for review. Let's hope that this rationale is not correct under extreme circumstances.

The ideal solution, though, would simply be to force Attorney General Gonzales to revise the regulations or for Congress to change the law so that there are exceptions to all these inflexible rules that cause immigrants to lose their appeals without any regard to the merit of their arguments.