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A case decided on Sept. 27 in the Fifth Circuit Court of Appeals, argued successfully by a team of lawyers from Boston College’s Post-Deportation Human Rights Project (PDHRP), has given new hope to those wrongly deported from the US by opening up the possibility that their cases can be revisited even after their departure from the US.
In the case, Garcia-Carias v. Holder, the PDHRP argued against a post-departure regulation that has prevented potentially many thousands of wrongly deported people from seeking legal reconsideration of their cases. The federal regulation states that after individuals have left the country, they are not able to even request that their cases be reconsidered, even if the reason for the deportation has been nullified.
The Fifth Circuit, after years of upholding the post-departure regulation, has now concluded — as argued by the PDHRP — that the post-departure regulation is invalid.
The case was argued by PDHRP supervising attorney Jessica Chicco and pro bono counsel Ronaldo Rauseo-Ricupero, a BC Law School alumnus and an associate with Nixon Peabody LLP.
“This is great news and sets positive precedent in the Fifth Circuit,” said Chicco. “The court recognized that whether one is inside or outside the country should not have any bearing on the right to make a motion to re-open a deportation case.”
The case, referred to the PDHRP by Trina Realmuto of the National Immigration Project, involves Wilmer Alberto Garcia-Carias, who was deported to Honduras in 2005. Garcia-Carias had come to the US as a 10-year-old and was deported while in his 20s. His parents and siblings all reside lawfully in the US as US citizens or green card holders. He was deported because he was considered an aggravated felon based on a first-time drug possession conviction that was later pardoned by the state of Louisiana under the first-offender pardon provision.
After his deportation, the US Supreme Court ruled that drug possession should not be considered an aggravated felony and that he should have been eligible to request discretionary relief from deportation. His deportation could not be reconsidered, however, because of the post-departure regulation.
“The legal struggle against a rigid interpretation of this regulation was one of the major issues for which the PDHRP was created,” said Law Professor Dan Kanstroom, who directs the PDHRP. “The case is extremely significant as impact litigation.
“The victory is especially meaningful to our client, who was incorrectly deported after many years of legal residence in the US. Though he still faces further proceedings before perhaps being able to return to the US, the courts are now open to consideration of his claims,” added Kanstroom, author of the new book Aftermath: Deportation Law and the New American Diaspora.