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"The Government Knew This"

December 07, 2023 (1 min read)

In an unpublished decision dated Dec. 4, 2023 a panel of the Ninth Circuit remanded for a new hearing.  The facts are stunning...unless you practice immigration law:

"Because Lead Petitioner credibly stated that she did not receive the NOH, the BIA abused its discretion in declining to rescind the in absentia orders under 8 U.S.C. § 1229a(b)(5)(C). We remand for a new hearing on Petitioners’ asylum applications. PETITION GRANTED and REMANDED. ... Here, when Ontiveros Lozano’s removal hearing date was moved up, the Government mailed her an NOH, but it was returned as undeliverable over a month before her scheduled hearing. Ontiveros Lozano therefore indisputably did not receive the required notice, and the Government knew this. Yet the Government requested and received an in absentia removal order against Ontiveros Lozano when she did not appear for her scheduled hearing. In doing so, the Government violated the explicit statutory requirement in § 1229a(b)(5)(A). The Government now argues that Ontiveros Lozano’s removal proceedings should not be reopened because she was not diligent in discovering the Government’s conduct and because she has forfeited her challenge to the entry of the in absentia removal order. The Government’s duty should be to seek justice, not to deport people at any cost. In my view, it lost sight of that duty here."

One expert, former BIA Chairman Paul W. Schmidt, puts it this way:

"The full ugliness and dysfunction of EOIR and the DOJ are on display here:

  • Aimless Docket Reshuffling in action;
  • Defective notice;
  • Violation of statutory requirements;
  • Defective administration of justice;
  • Unethical actions by ICE counsel in requesting an in absentia order knowing full well that the respondent had never received notice;
  • Stunningly poor trial judging (2X);
  • Horrible appellate judging;
  • Frivolous defense of an unjust decision by OIL."

[Hats off to Deok Kim!]