CA6 on Timely Retraction: Ruiz Del Cid v. Holder

CA6 on Timely Retraction: Ruiz Del Cid v. Holder

"The BIA’s decision at issue here, with precious little explanation, concludes Ruiz could not benefit from the retraction exception because he had “delayed retraction of his false testimony before the asylum officer for 4 years.” Perhaps the BIA thought four years to be so long that it saw no need to explain why. But in fact, its conclusion was incorrect under its own correct statement of the governing standard—that timeliness is determined by asking whether the false statement was retracted before it had been or was about to be exposed. Ruiz chose, to his own detriment, to retract his statement at the first opportunity he had to testify after his interview and where there is no evidence that his lie would ever have been exposed. It is no secret that the immigration system moves very slowly; Ruiz should not be prejudiced by the BIA’s own backlog. Here, the BIA’s interpretation of the retraction doctrine, although perhaps not “manifestly contrary to the statute,” was at variance with its own binding precedent and cannot stand. See Valdiviezo-Galdamez v. Att’y Gen. of the U.S., 663 F.3d 582, 605 (3d Cir. 2011); see also Idaho Power Co. v. FERC, 312 F.3d 454, 464 (D.C. Cir. 2002). 

We cannot, however, determine eligibility for cancellation of removal under the four elements of 8 U.S.C. § 1229b(b)(1)(A)-(D). The IJ found that Ruiz had satisfied the physical presence requirement of (A) and had not been convicted of a disqualifying offense under (C). He found that Mr. Ruiz’s wife satisfied the hardship requirements of (D) but made no determination of that issue for Mr. Ruiz. The proper course, therefore, is to remand to the BIA so that the board can determine whether Mr. Ruiz satisfies the hardship clause and is thus eligible for cancellation of removal. See Costa, 257 F. App’x at 547. We therefore VACATE the decision of the Board of Immigration Appeals and REMAND to the Board for further proceedings consistent with this opinion." - Ruiz Del Cid v. Holder, Aug. 29, 2014.  [Hats off to Blake P. Somers!]