The Third Circuit Court of Appeals in Philadelphia handed down a case this week which, at first blush, seems rather straightforward. The Court decided that when an immigration judge is deciding whether or not to deport someone based on a criminal conviction, deportation cannot occur unless and until the direct appeal of that conviction has been resolved.
The case, Orabi v. Attorney General of the United States, stemmed from a lawful permanent resident's conviction for fraud, counterfeiting and aggaravated identity theft in 2010. The defendant, Mr. Omar Abd Gomaa Orabi, filed an appeal of that conviction to the Second Circuit Court of Appeals. That appeal remains pending.
The Department of Homeland Security did not wait for the appeal to run its course before initiating deportation proceedings against Mr. Orabi. In February of 2012, DHS charged that Mr. Orabi was removable because his convictions constituted an aggravated felony. Removal proceedings began and Mr. Orabi had no attorney representing him. The man explained to the immigration judge and to DHS counsel that he had appealed the criminal conviction and argued that the deportation proceedings should not go forward until his appeal was decided.
Apparently unwilling to wait for the conclusion of the appeal, the immigration judge ordered Mr. Orabi deported to Egypt. The man was, in fact, deported back to Egypt.
Mr. Orabi did not give up, however. Instead, he filed a pro se appeal with the Board of Immigration Appeals (BIA). The BIA upheld the immigration judge's decision to order the man deported. Mr. Orabi continued fighting and filed an appeal with the Third Circuit, again doing so without a lawyer.
Amazingly, the Third Circuit ruled this week that Mr. Orabi was right and that the immigration judge was wrong to order him deported while his criminal appeal remained pending. The Third Circuit ordered DHS to return Mr. Orabi to the U.S. and to wait until his direct appeal of the criminal conviction had completed before trying again to deport him.