💎 ANOTHER “UNPUBLISHED GEM” UNEARTHED BY HON. “SIR JEFFREY” CHASE — 2d Cir. Says “Undue Delay By BIA” Could Overcome “Aging Out” In 42B Cancellation Case!  

https://ww3.ca2.uscourts.gov/decisions/isysquery/659feed6-c58f-40f6-8494-5a46352ff341/6/doc/23-6231_so.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/659feed6-c58f-40f6-8494-5a46352ff341/6/hilite/

Cruz v. Garland:

Nevertheless, Cruz argues correctly that Isidro-Zamorano, 25 I. & N. Dec. 829, leaves open the possibility for adjudication of the merits of a cancellation application where the qualifying relative aged out of qualifying status because of undue procedural delays. As explained below, the facts are unclear as to why briefing and decision were delayed. As such, we remand for the BIA to address in the first instance whether the delays on appeal in this case were undue and attributable to the agency, and if they were, for the BIA to review the IJ’s denial of cancellation of removal in the first instance.

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This is yet another in a long list of examples of how the Circuit actually did a better job than the BIA of locating, understanding, and following binding BIA precedent potentially favorable to the respondent!

I wouldn’t bet on today’s BIA adopting on remand an interpretation favoring the applicant, even though, as pointed out by the Second Circuit, such an interpretation would be legally possible. Perhaps, this is a case where amici need to “weigh in” before the BIA on remand.

In my mind, it also raises questions of whether the numerous unnecessary delays, backlogs, and confusion caused by the BIA’s failure to follow the statutory language on the “stop time rule” for 42B cancellation, as twice found by the Supremes, could be categorized as “unnecessary — and totally foreseeable — delay?” Both courts and advocates warned the BIA — in vain — that ignoring the clear language of the statute was a huge mistake that would create more unnecessary disorder in the already dysfunctional EOIR system! But, in their haste to rule in favor of DHS Enforcement, the BIA once again ignored the experts.

🇺🇸 Due Process Forever!

PWS

04-07-24 

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ADDENDUM FROM “SIR JEFFREY:”

“Thanks, Paul (and hi to everyone!), but credit to Ray Fasano for flagging this.

Best, Jeff”

Thanks, Ray!