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Immigration Law

Unpub. CA5 Remand Victory: Ramnarine v. Holder

"The BIA  certainly did not abuse its discretion in determining cancellation of removal would “likely” be denied  due to Ramnarine’s and Raymond’s history of immigration fraud.  The BIA, however, applied an incorrect review standard.  Along that line, it incorrectly interpreted Coelho to provide that all motions to remand must meet the motion-to-reopen standard.  In re: Ramnarine at 2.  Instead, Coelho states a motion to remand must meet the substantive requirements of a motion to reopen “where [it] is really in the nature of a motion to reopen or a motion to reconsider”.  Coelho, 20 I. & N. at 471.  Conversely, “[w]here a motion to remand simply articulates the remedy requested by an appeal, [the BIA] treat[s] it as part  of the appeal and do[es] not  require it to  conform to the  standards for considerations of motions”.  Id.  The BIA did not rule the motion to remand is “really in the nature of a motion to reopen”.  Id. Moreover, because remand to the immigration judge for a discretionary decision on Raymond’s application for cancellation of removal was the entire “remedy requested by [their] appeal”, the BIA should not have applied the motion-to-reopen standard of  review.  Id. It is within the BIA’s power to extend or otherwise alter its precedents, but to effect such a policy change, “it must provide a reasoned explanation for its action”.  Judulang v. Holder, 132 S.Ct. 476, 479 (2011).  No such explanation is present here.  See In re: Ramnarine at 1-2.  Therefore, the BIA erred in applying the motion-to-reopen standard of review to the motion to remand.  It should have instead applied the general standard for reviewing an appeal. ... the dismissal is VACATED and this matter is REMANDED to the BIA for further proceedings consistent with this opinion." - Ramnarine v. Holder, Jan. 9, 2013, unpub.  [Hats off to the legendary Peter W. Williamson!]