Question: I was deported because of a crime committed many years ago.
However, I successfully had it vacated because I was not given my proper immigration advisals.
I previously filed a Motion to Reopen to get back to the U.S. However, that was denied. Now what can I do?
Answer: A case was just decided in your favor.
The basic facts of that case are as follows. The BIA denied Petitioner’s subsequent motions to reopen and reconsider for lack of jurisdiction under 8 CFR §1003.2(d).
Section 1003.2(d) provides, “a motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of…removal proceedings subsequent to his or her departure from the United States.”
On review, Petitioner argued that despite the language of 8 CFR §1003.2(d), the BIA nonetheless had jurisdiction over his motions. This was because his now vacated cultivation conviction was a “key part” of the government’s case in his removal proceedings.
Question: What did the court in that case conclude?
Answer: the court concluded that because the vacation of the conviction was completed and because the deportation was executed based primarily on that criminal conviction, that the Board of Immigration Appeals was wrong and that the Motion to Reopen the deportation proceedings should have been granted so that the person could get back into the United States.
Similarly with you, a Motion to Reopen should be made to the Board of Immigration Appeals.
You should not be stuck outside the United States at this time as you were deported based upon a crime that now does not exist.