Acosta-Soriano
Acosta-Soriano v. Immigration & Naturalization Service
Opinion
Lead Opinion
*226 MEMORANDUM **
Juan Fernando Acosta-Soriano, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ dismissal of his appeal from the Immigration Judge’s denial of his motion to re-open deportation proceedings as untimely. We have jurisdiction, 8 U.S.C. § 1105a(a)(2), 1 and grant the petition. The parties are familiar with the facts and, therefore, we only discuss those relevant to our analysis.
In May 1995, Acosta had an approved I-130 visa petition with a priority date assigned. However, the priority date had not yet become current. Pending a current priority date, Acosta sought asylum. INS then instituted deportation proceedings. The record establishes that a lawyer entered an appearance on Acosta’s behalf at a subsequent hearing held in November 1995. During those proceedings, Acosta’s lawyer withdrew Acosta’s asylum application, and asked for voluntary departure which was granted. The record establishes that Acosta’s hearing lasted approximately three minutes and that the proceeding and its consequences were never adequately explained to him as required by INS regulations. See 8 C.F.R. § 242.17 (1996); Bui v. INS, 76 F.3d 268, 270…
Dissenting Opinion
Silverman, J.
dissenting.
I would deny petition. In my opinion, the BIA did not clearly err in holding that the motion to reopen was untimely and not saved by equitable tolling.