Unpub. BIA In Absentia Victory: Matter of Wajay

Eric Bjotvedt writes: "Attached is a decision your readers may find very helpful on the issue of reopening cases where the alien received notice but failed to show up anyway.  In this case, I informed the judge that I did not know why my client did not show up but that I did give him notice.  The judge ordered him removed in absentia.  Later, I prepared and filed a pro se motion to rescind for him since he was in ICE custody because it was confident it would be removing him soon and because he was without resources and support.  The motion argued that he did not recall getting notice from me and, alternatively, that if the court deemed him to have received notice, he was sorry for not appearing and that he had no reason not to show up given all of his efforts to pursue relief during the proceedings before the absentia order was issued.  The government vigorously opposed and the judge denied the motion.  I then filed an appeal for him at the BIA and renewed my “totality of the circumstances” argument, notwithstanding the fact the respondent had notice of the hearing and simply forgot to show up.  The BIA, unlike the judge, acknowledged and addressed this argument, and I prevailed.  As I said to you in regard to another case I recently won at the BIA, it is so, so, so important to always argue the “totality of the circumstances” involved in a case, especially where, as in this case, this may be your only argument." - Matter of Wajay, A078-656-350, Mar. 22, 2012, unpub.