Eleventh Circuit Reverses Immigration Removal Order, Finding No Misrepresentation – Ortiz-Bouchet et al v. Attorney General

May 2, 2013 by David S. Seltzer

Because I represent so many people seeking help changing or protecting their immigration status, I was interested to see a recent ruling reversing an order that two people be removed from the United States. The Eleventh U.S. Circuit Court of Appeals, which is the federal appeals court for Florida, ruled that an immigration appeals judge applied the wrong standard when it ordered the removal of a married couple. In Ortiz-Bouchet et al. v. Attorney General, Kelvin Ortiz-Bouchet and Edith Carolina Malpica-Zapata were ordered removed on the grounds that they were inadmissible when they attempted to adjust their immigration status. Neither was in possession of valid entry documents; Ortiz had procured documents by fraud; and Malpica had sought entry into the United States after spending time as an undocumented immigrant. The Eleventh Circuit found that two of the rules didn’t apply to their situation, and that Ortiz did not make a willful misrepresentation.

The couple sought post-entry adjustment of status while they were already in the United States. An immigration judge ordered them removed instead, finding that they were removable because they were inadmissible by law. The immigration judge said neither were in possession of valid entry documents. Furthermore, the IJ ruled, Ortiz had procured the documentation he did have by fraud or willful misrepresentation of facts. And finally, the IJ said Malpica was inadmissible because she was seeking admission within 10 years of departing the United States, after being unlawfully present for a year or more. They appealed to the Bureau of Immigration Appeals, which affirmed this ruling without comment or an opinion.

The Eleventh Circuit started by finding that the rule prohibiting entry for people without valid entry documents is only for people seeking to enter the United States. It does not apply to people adjusting their status, as Malpica and Ortiz sought to do, the court said. On the fraud and willful misrepresentation issue, the Eleventh found that Ortiz’s misrepresentations were the responsibility of Marciel Cordero, who Ortiz hired to submit a religious petition for entry that included false statements. Ortiz testified that he had never seen the documents and his signature was forged; this statement was not rebutted. The IJ found that Ortiz didn’t willfully misrepresent a material fact, but nonetheless ordered him removed for willful misrepresentation. The Eleventh reversed, saying the BIA has made clear that fraud requires actual misrepresentation. Finally, the appeals court found that Malpica had left the United States pursuant to a grant of advance parole. Under a previous case, the Eleventh said, this does not qualify as a departure within the meaning of immigration laws; thus, Malpica was not removable. It vacated both people’s order of removal.

In my experience representing people subject to removal or deportation proceedings, most cases that make it to the appeals courts are upheld without much comment. So it’s pleasing to see that the Eleventh Circuit reversed this removal order with an opinion that took the time to scrutinize the case’s history. Indeed, the fact that the first immigration judge made mistakes of law is disturbing, and a good reminder that people fighting removal and deportation need an experienced immigration lawyer on their side. The consequences of being removed from the United States are life-changing: it can end a career and separate the immigrant from loved ones who remain in the United States, sometimes including U.S.-born children. That’s why, if you face an immigration crime or immigration proceedings, you should call Seltzer Law. P.A., as soon as possible to discuss how we can help.

Based in downtown Miami, Seltzer Law represents clients across Florida who are facing immigration-related criminal and civil proceedings. If you or someone you love is in trouble over immigration matters, call us today. We answer the phone 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333), or you can send us a message online.

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