An immigrant who had been previously deported and then re-entered without inspection was seeking to have his original case reopened. He is married to a U.S. citizen and they have American children together.
The immigrant had been ordered in absentia, as he had not received notice of this hearing. It was finally carried out after the man had subsequent contact with immigration officials. Due to the prior deportation order, this removal occurred within twenty-four hours of coming into contact with ICE. The man had no opportunity to challenge it or attempt to seek review of his original case.
The man’s attorney filed a Motion to Reopen in Absentia, Motion to Reopen based on Ineffective Assistance of Counsel, and Opposing Motion to Terminate Removal Proceedings with the Immigration Court. The Immigration Judge denied all three of his motions. Respondent filed a Motion to Reconsider, but the Immigration Judge affirmed the decision.
In assisting with the BIA appeal, we wrote a draft brief for the attorney that persuasively explained that the Immigration Judge had failed to provide a rational explanation when denying the three motions. We quoted language from a judicial body: “The denial of a motion to reopen or reconsider a removal order is reviewed for an abuse of discretion. An abuse of discretion can be shown when the Immigration Judge (IJ) offers no rational explanation, inexplicably departs from established policies, or rests on an impermissible basis…”
With regards to lack of notice arguing MTR in absentia, we argued that IJ erred in not considering properly served notice of hearing vs. receipt of notice when considering Motion to Reopen. We argued, and the lawyer agreed, that with motions to reopen based on lack of notice the issue is not notice but receipt because the statute allows an alien ordered removed in an absentia proceeding to reopen the proceeding if he did not receive notice even if the notice that was sent.
The BIA agreed with the arguments contained in the brief, and the case was remanded back to the Immigration Court for a new hearing. We thank the lawyer for hiring us to assist with this challenging and successful BIA appeal.