Second Circuit vacates BIA order in precedent decisionPublished: Dec 18, 2006 By: Eric W. Schultz Source: My Source
The U.S. Court of Appeals for the Second Circuit has vacated an order of the Board of Immigration Appeals, agreeing with Eric W. Schultz, Esq., in his argument that an improper legal standard was used by the BIA in denying the client’s motion to rescind an in absentia order of removal and reopen proceedings. The client, a conditional permanent resident from
The motions were denied, and on appeal before the Second Circuit, Mr. Schultz argued that the client had provided enough proof to rescind the in absentia order in that he had overcome the presumption that the hearing notice was sent, and that he deserved reopening because the request for lifting the conditional basis was not legally barred by the removal order. The Court agreed in a 19-page precedent decision, finding that the administrative agency had used an improper standard regarding presumption of delivery of the notice by regular mail, and that the agency had failed to properly consider the client’s eligibility for permanent resident status. The decision can be found here.