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10th Cir Issues Cranky Deportation Order; Yells at 9th Circuit

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By William Peacock, Esq. on April 23, 2013 10:58 AM

In the overly-formal world of appellate courts, it's refreshing to run across the oddly non-staid opinion from time to time. Nothing breaks the monotony like an opinion written in limerick form or ten pages of angry rants about frivolous immigration appeals and another circuits' procedures.

Lucio Salgado-Toribio will soon be forcefully removed from the United States. He's faced deportation, voluntarily or forcefully, for the last three years. In the meantime, he has utilized frivolous appeals, forum shopping, and hilariously-clever "dilatory" tactics to stay in the country while his cases were pending. Today, the Tenth Circuit had enough and after ordering his immediate removal from the country, admonished him further:

If Petitioner again files a frivolous petition for review we will not grant him in forma pauperis status, will not grant him 30 days to brief his motion to stay removal, and will likely impose sanctions under Federal Rule of Appellate Procedure 38.

Ooooh, somebody’s cranky. It’s understandable, though. Salgado-Toribio entered the U.S. illegally in 1998. In 2010, an immigration judge found him removable as an alien present in the United States without being admitted or paroled pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). His request for voluntary departure, however, was granted.

He appealed to the BIA and was denied. He filed a petition for review and motion for stay of removal in the Ninth Circuit. The Ninth, realizing that they were an improper venue for a Tenth Circuit case, transferred it to the Fifth Circuit (whoops), which transferred it to the Tenth. The Tenth denied his petition and stay, including his petition for rehearing.

The following month, he re-filed with the BIA, arguing new evidence. They denied him. He filed again in the Ninth, which granted him another stay and transfer to the Tenth. The Tenth again denied him, including the petition for rehearing.

Of course, he filed another motion to reopen with the BIA. They rejected him again. He went back to the Ninth, which gave him another stay and kicked him to the Tenth.  He’s now requesting to proceed in forma pauperis. The Tenth Circuit is not amused and denied his in forma pauperis appeal, as such relief is only appropriate when the case isn’t a frivolous, ridiculous, rehash of multiple prior trips to the courthouse.

Note that in his last trip to the Tenth, the court held that they “have no jurisdiction to review the BIA’s decision not to reopen removal proceedings sua sponte.” His petition now is the same as it was last time — legally frivolous.

He wasn’t the sole object of the court’s ire, however. They also took great pains to explain why the Ninth Circuit’s unique policy of automatically granting stays in immigration appeals means that people like Salgado-Toribio can “accidently” file in the wrong circuit as a hilariously clever means to delay their deportation.

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