Criminal Defense of Immigrants
§ 11.82 (A)
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(A) Prior to Removal Order. Prior to the issuance of a removal order, the evidence of the alteration of the criminal history can simply be submitted at the merits hearing, in support of a motion to terminate proceedings. It must be submitted to the immigration courts, either before a final removal order or in a motion to reopen or reconsider, before it may normally be considered by the court of appeals on a petition for review.[464]
[464] Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002), citing 8 U.S.C. § 1252(b)(4)(A); Ramirez-Alejandre v. Ashcroft, 319 F.3d 365 (9th Cir. 2003) (en banc) (holding BIA violated noncitizen’s right to due process, in appeal of decision granting suspension of deportation, when BIA stated it was entirely precluded from considering new evidence bearing on hardship including evidence that, in the eight years intervening between immigration judge’s decision and proceedings before BIA, noncitizen’s daughter had been diagnosed with serious medical condition for which treatment was likely unavailable if noncitizen was deported).