Rare CA5 (Unpub.) Remand: Calle-Yanza v. Garland (Old 242(b) vs. New 242B)

Calle-Yanza v. Garland

"Miguel Angel Calle-Yanza asserts that the Board of Immigration Appeals (BIA) abused its discretion by denying his motion to reopen his immigration proceedings after an Immigration Judge (IJ) entered an in absentia order of deportation. He claims that he did not receive notice of his hearing because the immigration court’s correspondence was mailed to an attorney who did not represent him. The BIA applied § 242B (New § 242B) of the Immigration and Nationality Act (INA).  Calle-Yanza asserts that the BIA should have applied § 242(b) (Old § 242(b)) because his order to show cause was issued before New § 242B went into effect. We agree, and we therefore grant Calle-Yanza’s petition for review, vacate the BIA’s decision, and remand this case with instructions to reevaluate Calle-Yanza’s motion under Old § 242(b). ... We join the Ninth Circuit in concluding that the plain language of New § 242B indicates that the enhanced penalty provisions should not be imposed without the protection of the new notice requirements. As the Lahmidi court reasoned, the various subsections of New § 242B are “inextricably intertwined.” We too have observed this interdependency.  Here the BIA applied New § 242B to Calle-Yanza’s motion to reopen because his notice of hearing was issued after June 13, 1992. But Calle-Yanza’s order to show cause was issued prior to June 13, 1992, and therefore his immigration proceedings “commenced” before New § 242B went into effect. The BIA should have applied Old § 242(b). The Government attempts to distinguish Lahmidi on the basis that the petitioner in that case never received notice of New § 242B’s requirements, whereas Calle-Yanza was informed of those requirements in his notice of hearing. That is correct. Nevertheless, this distinction is unpersuasive. Congress “clearly intended” for New § 242B’s notice and penalty provisions to go into effect on the same day. Calle-Yanza’s proceedings “commenced” on June 3, 1992, before New § 242B’s effective date, so we conclude that the BIA abused its discretion when it concluded that CalleYanza’s motion was untimely. Old § 242(b) governs Calle-Yanza’s motion, and it “set[s] no time or numerical limitations on aliens seeking to reopen deportation proceedings conducted in absentia.” We GRANT Calle-Yanza’s petition, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion."

[Hats off to Perham Makabi!]