Gerardo Aguilera-Ruiz v. John Ashcroft, United States Attorney General

Gerardo Aguilera-Ruiz is a native and citizen of Mexico and has been a legal permanent resident of the United States since 1981. After being ordered deported, and while an appeal was pending before the Board of Immigration Appeals (BIA), Aguilera-Ruiz went to Tijuana, Mexico to buy tequila, candies, and piñatas for a party. The BIA deemed his appeal withdrawn pursuant to 8 C.F.R. § 1003.4 , which provides:

Aguilera-Ruiz sought habeas relief in federal district court to reinstate his appeal so that his claim for discretionary relief under former Immigration and Naturalization Act (INA) § 212(c) could be considered. The petition was denied. He now argues that the withdrawal-of-appeal regulation is without statutory basis, conflicts with 8 U.S.C. § 1101 (a)(2) and 8 C.F.R. § 1.1 (p), and runs counter to Congressional intent to preserve the status of a legal permanent resident who makes a “brief, casual, and innocent” departure. We disagree, and affirm.

I

Aguilera-Ruiz was placed in deportation proceedings by the Immigration and Naturalization Service on August 25, 1995, following his conviction for possession of a controlled substance while armed with a firearm in violation of…