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Matthew Kolken on Deportation And Removal

If the rules of the game change, should your client get a second bite at the apple?

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Today I am working on the issue of whether former exclusion proceedings should be reopened when there has been a change in law that materially affects an individual's eligibility for relief from "deportation". 


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My argument is that where an alien's motion to reopen/remand is based on a change in the law, the Board of Immigration Appeals must consider whether this newfound ability to file for relief from removal  warrants a favorable exercise of discretion to lift an exclusion order and reopen proceedings. 


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In my specific case, we filed a motion with the Board of Immigration Appeals to reopen the former exclusionary proceedings in consideration of my change in law argument. The Board denied our motion without fully addressing the above  issue, and we have filed a Petition for Review with the Second Circuit Court of Appeals to challenge the Board's denial.


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I have a Pre-Argument Conference scheduled this Friday to see if there is the possibility of resolving my client's case without the need for briefing. 


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Just to bring some humanity to an otherwise esoteric legal issue my client is married to a United States Citizen, and has two United States Citizen Children who are a product of the marriage, one of which has significant medical issues.  This is of importance because my client is from China, and could become subject to persecution relating to lace w:st="on">Chinalace>'s coercive family planning policies.


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I'll follow up after my conference this Friday.

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