Diaz v. Rosen, No. 20-1304 (7th Cir. 2021)Annotate this Case
Diaz entered the U.S. without inspection in 1995. He was placed in deportation proceedings. The notice of his hearing did not reach him. Zelaya failed to appear. A final order of deportation was entered in his absence. Zelaya later left the U.S. but re-entered before December 30, 1998. In 2014, following a traffic-related arrest, Zelaya successfully moved to reopen his deportation case. At a 2018 hearing, Zelaya moved for administrative closure of his deportation proceeding to allow “repapering,” by which a deportation proceeding that began under pre-1996 law can be converted into a cancellation-of-removal proceeding under 1996 legislation, 8 U.S.C. 1229b(b), to enable Zelaya to seek cancellation of removal, for which he is apparently legally eligible.
The BIA ordered voluntary deportation, citing the Attorney General’s 2018 opinion, which sharply restricted the ability of immigration judges and the Board to close cases administratively. The Seventh Circuit granted a petition for review, noting that it has previously held that the Attorney General’s directive was contrary to law; “immigration regulations plainly grant immigration judges broad authority and discretion to take ‘any action … that is appropriate and necessary for the disposition’” of their cases. The BIA did not exercise its discretion according to law, guided by factors enumerated in earlier precedent.