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Center for Human Rights and International Justice

PDHRP wins Major Decision in 5th Circuit Court of Appeals

Jessica Chicco
Jessica Chicco

The Center's Post-Deportation Human Rights Project (PDHRP) has just won a major victory in the Fifth Circuit Court of Appeals.  The case, Garcia-Carias v. Holder, was argued by PDHRP supervising attorney Jessica Chicco and pro bono counsel Ronaldo Rauseo-Ricupero. Rauseo-Ricupero is a Boston College Law alumnus who was also one of the first recipients the Center's Certificate in Human Rights and International Justice, and is now an Associate with Nixon Peabody LLP. 

In a decision filed on September 27, 2012, the Fifth Circuit, after many years of holdings to the contrary, has now concluded, as the PDHRP has argued, that the "post-departure regulation" is invalid.  The regulation, which purports to bar requests to visit an immigration case after the individual has been deported, has prevented potentially many thousands of wrongly deported people from legal reconsideration of their cases. 

Said BC Law Professor Daniel Kanstroom, co-founder of the PDHRP, "The legal struggle against a rigid interpretation of this regulation was one of the major issues for which the PDHRP was created, and we are quite pleased to have achieved this victory as we continue to fight for humane reform to the deportation system in this country."  Prof. Kanstroom is also the author of the new book, Aftermath: Deportation Law and the New American Diaspora.

The client in Garcia-Carias v. Holder was incorrectly deported as an "aggravated felon" after many years of legal residence in the US due to a single conviction of drug possession - a conviction for which he received a suspended sentence and was subsequently pardoned under Louisiana's first offender laws.  Although the client still faces further proceedings before perhaps being able to return to the US, the courts are now open to consideration of his claims.

The client contacted the PDHRP from Honduras years after he had been wrongly deported and after he learned that the Supreme Court had ruled that the government's theory in cases such as his had been incorrect; drug possession should not have been considered an aggravated felony.  However, the post-departure regulation had been held to preclude any motions to reopen or reconsider a case after departure or deportation.

Said Ms. Chicco, "The case is extremely significant as impact litigation and sets positive precedent for subsequent cases for those who wish to challenge unjust deportations through a motion to reopen after leaving the country."

For more on the PDHRP, visit their website at /content/bc/centers/humanrights/projects/deportation.html.