Gabriel Estrada-Rosales v. Immigration and Naturalization Service

Petitioner, Gabriel Estrada-Rosales, was deported after a finding that he had aided and abetted aliens in illegal entry in violation of 8 U.S.C. § 1251 (a)(13). The immigration judge relied upon a prior conviction of the crime of aiding and abetting illegal entry. 8 U.S.C. § 1325 , 18 U.S.C. § 2 . The conviction, however, was later set aside and petitioner then filed this petition to reopen the deportation. The Board of Immigration Appeals refused to consider the petition, holding that it was powerless to do so once the petitioner had actually been deported. We hold that the Board erred.

When petitioner was deported in 1978, his petition to vacate the aiding and abetting conviction was pending in federal district court and was decided in his favor a few months later. The deportation occurred after petitioner had unsuccessfully attempted to obtain a stay. Petitioner has apparently not attempted to reenter this country illegally but has pursued this petition while residing in Mexico.

In refusing to consider the petition for reopening because petitioner was no longer in this country, the Board relied upon a regulation which precludes the Board from hearing a motion to reopen after…