Migrants don’t lose appeals in removal

domestic violence against his wife, served a prison term and was deported in 2013.

He reentered the U.S. in September 2015 and was arrested just north of the border in San Diego County. He was charged with the crime of illegal reentry and, in April 2016, deported back to Mexico.

But the reentry charge was challenged, and ultimately dropped, after the federal appeals court ruled in another case that the kidnapping charge of which he had been convicted was not a crime that required deportation in all cases.

Lopez, meanwhile, obtained legal representation and tried to appeal the order that had led to his deportation in 2013. The appeal argued that, with his work history and family members living legally in the U.S. — his mother, six siblings and a daughter — the immigration courts should have considered either allowing him to remain or authorizing voluntary departure, which would have let him apply to immigrate legally in the future.

But an immigration judge ruled that he should have filed the appeal in 2013, while he was representing himself, and had forfeited his claim by waiting too long. Lopez currently lives in Mexico while his case proceeds in court.

In Friday’s ruling, the court said the Board of Immigration Appeals, which reviews immigration judges’ decisions, must now consider the issues Lopez tried to raise before his deportation.

“We of course express no opinion on the merits of that appeal; we hold only that Lopez did not withdraw it,” Judge Andrew Hurwitz said in the ruling. He said another federal appeals court, the Sixth Circuit in Cincinnati, had reached the same conclusion in a 2009 case about the “departure” regulations.

Hurwitz, appointed by President Barack Obama, was joined by Judge John Owens, another Obama appointee. Judge Kenneth Lee, an appointee of President Trump, said in a separate opinion that it would not violate “principles of fundamental fairness” to reject Lopez’s appeal, because he never sought a stay before his latest deportation. But Lee agreed with his fellow panel members that a “departure” must be defined as a voluntary act.

Lopez, 35, now lives in

Tecate, Baja California, gets occasional visits from family members, and works for a company that makes Tshirts, after an earlier job at a car wash. Contacted by telephone, he said he was gratified by the ruling.

“I didn’t think it would get this far,” he said. “Now I might have a chance to get back to my family, to my daughter, to what I know.”

He said he had returned to the U.S. illegally in 2015 because “I thought I had something to say” about his previous deportation. “I beat the case, then I went to ICE (Immigration and Customs Enforcement) agents in my cell. I couldn’t believe it, they wanted to deport me. I thought I was going to go home.”

“We all make mistakes in this world, but some of us do learn,” Lopez said. “There’s lots of stuff I’ve done, but I’ve paid for it.”

His lawyer, Lauren Cusitello of the nonprofit Crossroads Justice Center in San Diego, said she hopes the ruling will give Lopez the opportunity “to convince an immigration judge why he deserves a second chance to live with his family in the U.S. The worst pieces of his record are not who he is.”