| The Law Offices Jon E. Jessen represented Melnitsenko before the U.S. Court of Appeals for the Second Circuit. The Second Circuit found that the Board of Immigration Appeals (BIA) was wrong in denying Melnitsenko’s motion to reopen her deportation order based solely on the fact that the Department of Home Land Security (DHS) had raised an objection. As a result the Second Circuit ordered that the BIA review the case again and issue a new decision.
The Second Circuit ruled that "[W]hen the DHS opposes a motion to reopen, the BIA may not deny the motion based solely on the fact of the DHS's objection. Moreover, if the BIA denies a motion to reopen based on the merits of the DHS's objection, the BIA must provide adequate reasoning as to why the objection calls for denial of the motion to reopen in the exercise of discretion, in order to provide a meaningful opportunity for judicial review."
This is precedent setting and a very important case in that it advises DHS as well as the BIA, that the BIA cannot deny an immigrant’s motion to reopen a deportation order simply because DHS has objected to the motion.
In fact at time of writing, the Second Circuit has already cited to Melnitsenko v. Mukasey in three decisions: Braka v. Mukasey, 2008 U.S. App. LEXIS 9873 (2d Cir. May 6, 2008); Aiyan Lin v. Mukasey, 2008 U.S. App. LEXIS 8952 (2d Cir. Apr. 25, 2008); and Sheng Gao Ni v. Bd. of Immigration Appeals, 520 F.3d 125 (2d. Cir. 2008).
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