This case demonstrates the importance of having the guidance of an experienced defense lawyer.
This case was decided by the U.S. Department of Justice, Executive Office for Immigration Review (“EOIR”). The case involved removal (deportation) proceedings, and the timely filling of defenses.
Mr. Dang appealed a decision by an Immigration Judge. He was admitted to the U.S. in 1980 as a lawful permanent resident. In 1996, he was convicted of voluntary manslaughter. In July 2008, an Immigration Judge ordered him removed form the United States. The Immigration and Nationality Act states that any person not a citizen or national of the United States (“alien”) convicted of an aggravated felony can be removed from the US. Since his conviction, Mr. Dang has remained in this country under an Order of Supervision, and regularly checks-in with U.S. Immigration and Customs Enforcement (ICE).
Mr. Dang filed a motion (asked the Court) to terminate the removal proceeding in March, 2018. He advocated that his voluntary manslaughter conviction no longer qualifies as an aggravated felony, due to a case called Quijada-Aguilar v. Lynch, 799 F.3d 1301 (9th Cir. 2015) . In that case, the Court decided that “the completed offense of voluntary manslaughter itself is not an aggravated felony.”
The Quijada-Aguilar case and this case were heard by the 9th Circuit. Courts with federal jurisdiction are divided into Circuits. A decision made in a federal court sets precedent for that Circuit. Mr. Dang argued that his conviction was not an aggravated felony, due to the decision in the Quijada-Aquilar case. The Immigration judge acknowledged that this case changed the law regarding the conviction, so Mr. Dang’s conviction would not be an aggravated felony. However, Mr. Dang did not file his motion in a timely fashion. He was not eligible for an exception under the legal doctrine of equitable tolling. Equitable tolling is a legal doctrine in which the failure of one party to meet a deadline may be excused because they were prevented from doing so by circumstances beyond their control. It requires that the party exercise sufficient diligence in attempting to meet the deadline. The Immigration judge found that he did not do this.
The EOIR decided in Mr. Dang’s favor; he could no longer be removed. It stated that Mr. Dang’s circumstances were severe enough that he could be excused for missing the deadline. He faced health and family issues. It found that he exercised sufficient diligence to get his motion timely filed. In addition, Mr. Dang was a pro-se party. The EOIR understood that he did not have the advice of an attorney, and he may not have known about the deadline. The conviction was the only basis for the deportation proceedings. Since this was no longer a valid reason for removal, he could not be removed at this time.
This case is quite important for two reasons. It demonstrates the importance of having the guidance of an experienced defense lawyer. Mr. Dang made an error concerning timely filing. If he had sought the advice of an experienced defense lawyer, the lawyer would have known when to make the filing. Mr. Dang was very fortunate that the EOIR decided in his favor. However, it is likely that his case could have been successfully resolved at the Immigration Judge level. This would have saved him a tremendous amount of difficulty. Secondly, twelve years had passed from Mr. Dang’s conviction and the order of removal. This is a significant amount of time; removal proceedings can take several years to materialize. An experienced defense lawyer would have informed Mr. Dang that this can happen.