Sagastume v. Holder, No. 10-4393 (6th Cir. 07/20/2012)
In this case, the aliens were admitted to the U.S. and then went to Canada to apply for asylum. After their claims were denied, they were returned to the U.S. and placed in removal proceedings. They were originally charged as overstays under 237(a)(1)(B). While the proceedings were pending, the BIA decided R-D-, which required the aliens to be treated as applicants for admission because they made a departure by going to Canada. ICE then amended the NTA to charge them under 212(a)(7)(A)(i)(I).
The aliens applied for voluntary departure but could not show that they were present in the U.S. for a year prior to the issuance of the NTA. They were not present for a year before the issuance of the initial NTA but were before the issuance of the amended NTA. The parties stipulated to voluntary departure eligibility but the IJ and BIA denied the request and this was the only issue on appeal.
Beyond this case, the decision bears on the question of whether a completely defective NTA can, for example, trigger the stop time rule. In other words, can the government issue baseless NTA to stop the clock and only later amend it to reflect proper charges. Or should the proceedings be terminated to allow the government to issue a new NTA and initiate new proceedings?