Kolken & Kolken. Results-oriented immigration lawyers - specializing in Green Card, Deportation Cases and Temporary Visas.

Second Circuit vacates BIA order in precedent decision

Published: 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 Yemen , voluntarily appeared for “NSEERS” special registration in January, 2003, and was placed into Immigration Court proceedings, but no time for the hearing was provided.  He did not appear for Court, and an in absentia order of removal was entered against him.  He moved to rescind the in absentia order based on an argument that he had not received notice, that he had a valid exceptional circumstance for not receiving the notice if it was sent because of theft of mail at his house, which caused him to have mail forwarded to a friend’s address.  Also, he sought to reopen proceedings because he had filed a petition to lift the conditional basis of his permanent resident status, with request for waiver of the need to file with his wife, as his divorce had recently been finalized.

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.

Click here to see how we can help you.