D. Ariz. on Due Process: Ilyabaev v. Kane (Habeas)

D. Ariz. on Due Process: Ilyabaev v. Kane (Habeas)

"In their Petition for Writ of Habeas Corpus, Petitioners do not challenge the decisions made by the IJ or the BIA.  Instead, they claim that CIS violated their right to due process by failing to follow its own regulation - 8 C.F.R. § 103.2(b)(16)(i) - requiring it to notify them of any adverse information and provide them with an opportunity to respond before it revoked the I-140 Petition and denied the I-485 Application. Mr. Ilyabaev asserts that if he had been provided proper notice, he would have presented evidence demonstrating that he had the requisite three years of experience as a precision lathe operator. Petitioners seek an order invalidating CIS's decisions to revoke the I-140 Petition and deny their I-485 Applications. ... Petitioners do not ask the Court to decide the merits of the I-140 Petition or to overturn their orders of removal.  They merely seek an opportunity to be heard before CIS revokes the I-140 Petition and denies their I-485 Applications.  The Court will grant their Petition for Writ of Habeas Corpus and require that CIS give them that opportunity.  IT IS ORDERED granting the Petition for Writ of Habeas Corpus. Respondents may not remove Petitioners from the United States before they have been granted the process due to them under the regulations and CIS has made a fully informed decision on the I-140 Petition and the I-485 Applications." - Ilyabaev v. Kane, Mar. 22, 2012.  [Hats off to Maria Bettwy Wolfinger!]