Salvador Azarte Celia Castellon v. John Ashcroft, Attorney General

Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRI-RA), does the Board of Immigration Appeals (BIA) abuse its discretion when it dismisses a motion to reopen, timely filed by an alien during his voluntary departure period, because the alien subsequently fails to depart prior to the end of that period while awaiting the BIA’s decision? We conclude that it does and that the BIA must decide the motion on the merits.

I. BACKGROUND

Salvador Azarte and Celia Castellón (“the Azartes”) are natives and citizens of Mexico who entered the United States without inspection in 1987. On April 20, 1990, the Azartes were married in California. They have two children, Jahir, who is now nine, and Nahivy, who is now ten. Both children are U.S. citizens.

The Immigration and Naturalization Service (“INS”) commenced removal proceedings against the petitioners on April 17, 1997. The Azartes were charged with being subject to removal as aliens present in the United States without being admitted or paroled. See Immigration and Naturalization Act (“INA”) § 212(a)(6)(A)(I); 8 U.S.C. § 1182 (a)(6)(A)(i) (2004). Petitioners conceded their removability and requested relief in the…