Vigo v. Mayorkas

Background

Denroy Vigo, who was incarcerated at Fishkill Correctional Facility and represented himself, filed a petition seeking cancellation of removal, release from immigration custody, and transcripts of his immigration proceedings. He alleged that he was serving a 25-years-to-life sentence based on a 1988 New York conviction and that an Immigration Judge ordered his removal to Antigua in 1994.

Vigo argued that he had been detained beyond the 90-day removal period in federal immigration law. The court’s earlier order found that he remained confined because of his criminal judgment, not because the 90-day immigration-removal period had expired. The earlier order also held that the district court lacked jurisdiction to review a request for a stay of removal and declined to transfer Vigo’s challenge to the 1994 removal order to the Court of Appeals because the challenge appeared untimely.

Motion for reconsideration

Vigo filed a timely motion under Rule 59(e) of the Federal Rules of Civil Procedure, which permits a party to ask the court to alter or amend a judgment when the court overlooked controlling law or previously presented facts. He also filed a notice of appeal. Because the motion was timely, the court concluded that the notice of appeal did not become effective until the court ruled on the motion and that it retained authority to decide the motion.

The court rejected Vigo’s argument that intervening case law required a different result. It explained that cancellation of removal is discretionary relief with statutory eligibility requirements. It also discussed the Supreme Court’s decision in Niz-Chavez v. Garland, which held that a notice to appear must include the hearing’s time and place in one document to trigger the rule ending the period used to assess eligibility for cancellation of removal. Vigo did not allege that his notice to appear lacked the required information in one document. The court further stated that a federal district court could not reopen his 1994 removal proceedings; such a request had to be made in the immigration proceedings and then, if necessary, reviewed by the appropriate court of appeals.

Leave to amend and disposition

Although the court concluded that Vigo had not shown a basis for reconsidering the substance of the earlier dismissal, it recognized that self-represented litigants generally should receive at least one opportunity to amend when amendment might cure a pleading defect. The court said it was unclear whether Vigo could state a valid claim in the district court because district courts have limited authority over immigration matters, but it nevertheless granted his request for reconsideration for the purpose of allowing an amendment.

The court granted the motion for reconsideration, directed the Clerk to vacate the earlier dismissal and judgment, reopened the case, and granted Vigo leave to file an amended petition within 30 days. The amended petition must be submitted to the court’s Pro Se Intake Unit, use the same docket number, and replace rather than supplement the original petition. If Vigo does not file an amended petition, the court will dismiss the action without prejudice. The court also certified that an appeal would not be taken in good faith and denied fee-free status for an appeal from this order.