Amador-Morales v. Garland, No. 22-3653 (8th Cir. 2024)
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The United States Court of Appeals for the Eighth Circuit reviewed a petition by Israel Amador-Morales, a Mexican citizen, challenging the decision of the Board of Immigration Appeals (BIA) to deny his motion to reopen his case. Morales had entered the United States without inspection in 2003, was voluntarily departed in 2012, and then re-entered without inspection in 2013. The Department of Homeland Security (DHS) sought his removal and issued a Notice to Appear alleging his removability under 8 U.S.C. § 1182(a)(6)(A)(i). Morales admitted the allegations and conceded removability in 2016. However, in 2019, he withdrew his admission and concession, and moved to terminate the proceedings. The Immigration Judge denied the motion, ordered his removal, and the BIA dismissed his appeal and denied the motion to reopen.
Morales argued that the BIA should have granted his motion to reopen, erred in ruling his objection to the Notice to Appear as untimely, and misconstrued his motion as asking it to compel DHS to exercise prosecutorial discretion. The court, however, found that Morales's objections to the Notice to Appear were untimely as they occurred after the closing of pleadings. The court also determined that the BIA's decision that it lacked the authority to compel the DHS to exercise prosecutorial discretion did not constitute an abuse of discretion.
The court denied the petition for review, upholding the BIA's decision to deny the motion to reopen and maintaining Morales's removal order.
Court Description: [Benton, Author, with Shepherd and Kelly, Circuit Judges] Petition for Review - Immigration. The BIA properly declared that its decision in Matter of Fernandez, 28 I. & N. Dec. 605 (BIA 2022), was not an intervening change in the law that would excuse petitioner's forfeiture of an objection to the Notice to Appear; through counsel, petitioner admitted the DHS's allegations and conceded removability, and there were no egregious circumstances which would prevent application of the general rule that the admission bound petitioner; because petitioner could still pursue prosecutorial discretion, the BIA did not abuse its discretion in denying a remand. Judge Kelly, dissenting. [ February 26, 2024 ]
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