Fernando Guzman v. Immigration and Naturalization Service

Fernando Guzman, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying relief in two rulings. The first ruling affirmed the Immigration Judge’s denial of Guzman’s motion to reopen his deportation proceedings. The second ruling denied Guzman’s motion to remand to the Immigration Court so that he could apply for an adjustment of status. We deny Guzman’s petition with regard to the BIA’s first ruling, but grant the petition and remand with regard to the second ruling.

Guzman entered this country without inspection in 1990. He was placed in immigration proceedings in 1997. He applied for suspension of deportation pursuant to former § 244(a) of the Immigration and Naturalization Act, 8 U.S.C. § 1254 (a) (1994). The Immigration Judge held that his application was “pretermitted,” presumably because Guzman failed by a few weeks to meet the requirement of seven years continuous presence in the United States. See id. Guzman was granted voluntary departure, with an alternative of deportation to Mexico if he failed to depart voluntarily.

Guzman sought reopening in the Immigration Court in order to re-apply for suspension of…