A Guide to Assisting Asylum-Seekers with In Absentia Removal Orders

Transcription

1 A Guide to Assisting Asylum-Seekers with In Absentia Removal Orders Conchita Cruz, Michelle N. Mendez, Swapna Reddy, Dorothy Tegeler and Liz Willis

2 This guide is intended to assist lawyers and Fully Accredited BIA Representatives and is not a substitute for independent legal advice in a client s case. The cases cited herein do not constitute an exhaustive search of relevant case law in all jurisdictions. Copyright 2016 The Catholic Legal Immigration Network, Inc. and the Asylum Seeker Advocacy Project at the Urban Justice Center

3 ACKNOWLEDGMENTS The primary authors would like to thank ASAP interns Chelsea Bowling, Amit Jain, Aubrey Jones, Joanne Lee, Elizabeth Leiserson, Kathy Lu, Dennise Moreno and Sophia Wang, and CLINIC s Bradley Jenkins, BIA Pro Bono Project Attorney, for their invaluable contributions. ASAP and CLINIC would also like to thank Kristin Macleod-Ball and Trina Realmuto of the National Immigration Project of the National Lawyers Guild, and Ben Winograd of Immigrant & Refugee Appellate Center, LLC, for their thoughtful review of and excellent suggestions for this guide.

4 TABLE OF CONTENTS I. INTRODUCTION...6 II. COMMON CLAIMS FOR IN ABSENTIA MOTIONS TO RESCIND AND REOPEN AND MOTIONS TO REOPEN...8 Motions to Rescind and Reopen...9 No Written Notice of the Hearing... 9 Exceptional Circumstances Preventing Appearance...11 Ineffective Assistance of Counsel Motions to Reopen under Sua Sponte Authority Other Motions to Reopen No Oral Notice of the Consequences of Failing to Appear Changed Country Conditions Presenting Underlying Asylum Claims Why to Include Asylum and/or Other Claims for Relief Sources and Additional Resources III. OVERVIEW OF PROCEDURE AND FAQS IV. INTERVIEWING CLIENTS AND DRAFTING DECLARATIONS Building Client Rapport...25 Beginning the Interview...26 Explain the Questions You Will Ask...26 Questions To Ask...26 General Questions...26 Document Collection...27 Specific Background Questions...27 Conditions of Detention...27 Bond Hearing and Release...28 ICE Check-Ins...29 Insufficient Notice...30 Exceptional Circumstances Removal Order... 31

5 V. MTRR / MTR AND CHANGE OF VENUE CHECKLIST APPENDIX A. TEMPLATE: SAMPLE LETTER TO INEFFECTIVE COUNSEL Template A1: Sample Letter to Ineffective Counsel...39 APPENDIX B. TEMPLATES: SAMPLE MOTION TO RESCIND AND REOPEN FILING Template B1: Cover Letter Template B2: Cover Page...42 Template B3: MTRRR...43 Template B4: Sample Exhibits...60 Template B5: IJ Order...72 Template B6: Declaration...73 Template B7: Certificate of Service...78 APPENDIX C. TEMPLATES: SAMPLE CHANGE OF VENUE FILING...79 Template C1: Cover Letter...80 Template C2: Cover Page Template C3: Motion to Change Venue...82 Template C4: Motion to Change Venue IJ Order...84 Template C5: EOIR-33 Change of Address Forms...85 Template C6: Certificate of Service...86

6 I. INTRODUCTION This guide is intended to support pro bono attorneys, fully accredited Board of Immigration Appeals (BIA) Representatives, law students, and paralegals working to prevent the deportation of families who recently crossed the U.S.-Mexico border seeking asylum and have been ordered removed in absentia by an Immigration Judge (IJ). The Asylum Seeker Advocacy Project (ASAP) at the Urban Justice Center and Catholic Legal Immigration Network, Inc. (CLINIC) prepared this guide after representing dozens of families who received in absentia removal orders and successfully reopening their cases in the wake of increased enforcement by Immigration and Customs Enforcement (ICE). An IJ enters an in absentia removal order when a respondent 1 is not present at his or her immigration court hearing. Common reasons for in absentia removal orders that ASAP and CLINIC have encountered include: (1) not receiving any notice of the hearing from the government; (2) believing that a change of address with ICE or ICE contractors changes their address with the Immigration Court because of the assumption that they are the same agency; (3) receiving incomplete or confusing information about the Immigration Court hearing and how to change venue; (4) transportation, health, or other personal problems; and (5) ineffective assistance of counsel. When an IJ or the BIA issues an in absentia order of removal, the respondent may seek to reopen his or her case in one of three ways: (1) by filing a motion to rescind and reopen (MTRR) under INA 240(b)(5)(C) 2, (2) by filing a motion to reopen (MTR) under the IJ s sua sponte authority 3, or (3) by filing an MTR under INA 240(c)(7). Generally, the respondent must file a motion to reopen within 90 days of the date of entry of a final administrative order of removal. 4 However, orders of removal entered in absentia by an IJ may be rescinded 6 1 The person against whom the Notice to Appear (NTA) is issued is called the respondent the person who must respond to the charges included in the NTA. 2 Although the BIA adjudicates motions to rescind and reopen in absentia removal orders like other motions to reopen, there is arguably a difference between the two. In particular, INA 241(a)(5) includes a bar to reopening but includes no such bar to rescission. 3 8 C.F.R (a) (providing IJs with authority for sua sponte reopening); 8 C.F.R (b)(1) (providing IJs with authority to reopen any proceedings in which the IJ made a decision). 4 INA 240(c)(7)(C)(i); 8 C.F.R (c)(2), (b)(1). Federal courts have recognized that the 90-day deadline is subject

7 within 180 days upon a showing of exceptional circumstances. 5 And, if the respondent did not receive sufficient notice of his or her Immigration Court hearing, an MTRR may be filed at any time. 6 MTRRs and MTRs are a critical tool for assisting families who have received in absentia removal orders. This guide provides a comprehensive overview of whether and how to file an MTRR and/or MTR in these cases. First, the guide provides an overview of relevant law and potential claims. Second, the guide tackles frequently asked questions and discusses the factors the respondent should consider when deciding whether it is in his or her best interest to file an MTRR or MTR in response to an in absentia removal order. Third, the guide provides a checklist and templates that cover the presentation of underlying legal claims, the preparation of respondent declarations, and the completion of other necessary documents. Fourth, the guide includes a sample motion to change venue, as many asylum-seekers receive in absentia removal orders after moving from the address where they initially resided within the United States. Materials concerning legal claims and respondent declarations are specifically designed for asylum-seeking families fleeing gender- and gang-based persecution in Honduras, Guatemala, El Salvador, and Mexico. These materials may not be generalizable to other regions of the world or other types of claims. Materials concerning procedural requirements and change of venue are generally applicable to MTRRs and MTRs for in absentia cases in removal proceedings, including cases involving respondents from other countries or factual circumstances. Please note that respondents with in absentia removal orders pre-dating the enactment of The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of must refer to the law at the time of the removal orders, as this Primer solely discusses post-iiraira law and regulations. Generally, the pre-iiraira law is much more generous than the current law. In all cases, please review relevant statutes, regulations, and case law as opposed to relying on the advice and templates in this guide alone. 4 This guide was prepared by the Asylum Seeker Advocacy Project (ASAP) at the Urban Justice Center and Catholic Legal Immigration Network Inc. (CLINIC). For more information, visit asylumadvocacy.org or cliniclegal.org. And please contact us at info@asylumadvocacy.org with any questions. Last updated December 12, to equitable tolling. E.g., Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000); Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016); Harchenko v. INS, 379 F.3d 405 (6th Cir. 2004); Hernandez-Moran v. Gonzales, 408 F.3d 496 (8th Cir. 2005); Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) (en banc); Riley v. INS, 310 F.3d 1253 (10th Cir. 2002); Avila-Santoyo v. Att y Gen., 713 F.3d 1357 (11th Cir. 2013) (en banc); While the First Circuit has yet to rule on the issue, it found notabl[e] that every circuit that has addressed the issue thus far has held that equitable tolling applies to... limits to filing motions to reopen. Bolieiro v. Holder, 731 F.3d 32, 39 n.7 (1st Cir. 2013). 5 INA 240(b)(5)(C)(i); 8 C.F.R (b)(4)(ii). Federal courts have recognized that equitable tolling applies to motions to reopen with a 180-day deadline. E.g., Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005); Pervaiz v. Gonzales, 405 F.3d 488 (7th Cir. 2005); Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999)(en banc). 6 INA 240(b)(5)(C)(ii); INA 242B(c)(3)(B) (pre-iiraira); 8 C.F.R (b)(4)(ii), (iii)(a)(2). 7 Pub. L. No

8 II. COMMON CLAIMS FOR IN ABSENTIA MOTIONS TO RESCIND AND REOPEN AND MOTIONS TO REOPEN An in absentia removal order is a final administrative removal order that is issued by the IJ during a hearing at which the respondent is not present. An IJ may reopen an in absentia removal order in one of three ways: (1) through a grant of respondent s Motion to Rescind and Reopen under the authority arising in INA 240(b)(5)(C), (2) through a grant of respondent s Motion to Reopen under the IJ s sua sponte authority 8, or (3) through a grant of respondent s Motion to Reopen under the authority arising in INA 240(c)(7). The following section explores common claims arising under each authority. In some cases, a respondent may wish to advance arguments in the alternative under each authority. Note that this guide is not designed to comprehensively cover all possible MTRR and MTR claims, but is instead focused on outlining possible arguments for MTRRs and MTRs of in absentia removal orders. Generally, a motion to reopen must be filed within 90 days of the final removal order. 9 However, the time limit is 180 days if the respondent files an MTRR of an in absentia removal order because exceptional circumstances caused the failure to appear. 10 If no notice was received or if the notice was insufficient, an MTRR of an in absentia order may be filed at any time. 11 An IJ s decision to deny an MTRR or MTR of an in absentia order may be appealed to the BIA. There is no automatic stay of removal or deportation pending the BIA s determination; however, the BIA can adjudicate a stay motion filed in conjunction with any appeal of an IJ s denial of an MTRR or MTR of an in absentia order. 12 If the BIA denies an appeal of an MTRR or MTR of an in absentia order, the individual may file a petition for review (PFR) with the U.S. Court of Appeals with jurisdiction over the Immigration Court where the in absentia removal order was issued. 13 Please click here for a helpful map displaying the Immigration Courts under 8 8 Supra note 3. 9 Supra note Supra note Supra note C.F.R (f ), (b). 13 INA 242(a)(1), (b)(6); see also Kucana v. Holder, 558 U.S. 233, 242 (2010) (holding that even judicial review is banned, it only applies to determinations made discretionary by statute, not to determinations declared discretionary by the Attorney General

9 the jurisdiction of each of the eleven U.S. Court of Appeals jurisdictions. 14 Motions to Rescind and Reopen The proper filing of an MTRR of an in absentia order stays the removal of the respondent pending disposition of the motion by the IJ. 15 In absentia cases generally have one or more of the following MTRR claims: No written notice of the hearing Exceptional circumstances preventing appearance Ineffective assistance of counsel No Written Notice of the Hearing Failure to provide required written notice of an Immigration Court hearing provides a basis for reopening an in absentia order. 16 The notice of the master calendar hearing, whether contained in the charging document issued by the Department of Homeland Security (DHS) known as the Notice to Appear (NTA) 17 or in a separate notice known as the Notice of Hearing in Removal Proceedings issued by the Immigration Court, must state the time and place of the proceedings and must inform the respondent of the consequences of failing to attend the hearing. 18 More often, the NTA will not contain information of the hearing date and time. 19 Once the NTA is served, the INA requires 10 days to elapse between service of the NTA and the scheduling of the first removal hearing. 20 NTAs or Notices of Hearing in Removal Proceedings may be served in person or, if personal service is not practicable, by mail to the address the respondent provided ICE or CBP at the time the NTA was served. 21 through regulation). In order to maximize the opportunity for de novo review, to the extent possible, issues should be characterized as legal (not discretionary). 14 CLINIC s U.S. Immigration Courts and U.S. Courts of Appeals Map, available at resources/maps/us-immigration-courts-and-districts.pdf. 15 INA 240(b)(5)(C) ( The filing of the motion to reopen described in [INA & 240(b)(5)(C)((i) and (ii)] shall stay the removal of the alien pending disposition of the motion by the immigration judge. ); see also INA 242B(c)(3) (pre-iiraira); 8 C.F.R (b)(4)(ii) (removal orders); 8 C.F.R. 242B(c)(3) (deportation orders, pre-iiraira). 16 See Matter of G-Y-R-, 23 I&N Dec. 181, (BIA 2001)(holding an in absentia order of removal is inappropriate where the record reflects that the alien did not receive an NTA by certified mail); but see e.g., Dominguez v. U.S. Att y Gen., 284 F.3d 1258, (11th Cir. 2002)( Due process is satisfied so long as the method of notice is conducted in a manner reasonably calculated to ensure that notice reaches the alien. ); Matter of M-D-, 23I&N Dec. 540, 545 (BIA 2002) (holding that it is not reasonable to allow a respondent to defeat service by neglecting to collect mail or by the postal service returning certified mail for being unclaimed ). 17 On the NTA, the notice of the next hearing is listed on the bottom left side of the first page. 18 INA 239(a)(1)(G)(ii), 239(a)(2)(A). 19 See Orozco-Velasquez v. Attorney General, No , slip op. at 79 (3d Cir. March 11, 2016) (ruling that a Notice to Appear that does not contain all the required information will not stop the continuous residency clock for LPR cancellation eligibility). 20 INA 239(b)(1). 21 INA 239(c). 9

10 They may also be served to the address in the DHS Alien File if the respondent has had previous interactions with DHS, including prior applications with United States Citizenship and Immigration Services (USCIS). Notices do not need to be mailed by certified mail. 22 The respondent is responsible for updating the Immigration Court (EOIR) with his or her current address, 23 and the Immigration Courts are not required to serve notices of hearing on respondents who fail to inform them of changes in address. 24 There is no requirement that the notices be in a language other than English. 25 There is a presumption of effective delivery if the notice was properly addressed and mailed, and the respondent is required to rebut this presumption in order to reopen an in absentia order based on lack of notice. Although delivery by certified mail is not required, the presumption of effective delivery is weaker when the notice is sent by regular, as opposed to certified, mail. 26 In determining whether the respondent has overcome the presumption of effective delivery, the IJ must consider both circumstantial and corroborating evidence. The IJ may consider the following non-exhaustive types of evidence and information: The respondent s declaration that discusses the respondent s actions upon learning about the in absentia order and whether he or she exercised due diligence in seeking redress; Declarations from family members and other individuals who are knowledgeable about the relevant facts relating to notice of the hearing; Prior applications filed with USCIS bearing an address (to prove that the respondent did provide DHS, of which USCIS is a part, a current address); Prior application for removal relief or protection from removal such as asylum, withholding under the INA, or CAT protection (to establish an incentive to appear); Previous attendance at Immigration Court hearings (to establish record of attendance); Other circumstances or evidence indicating possible non-receipt. 27 Notice of a hearing is also required to be served on the respondent s Attorney of Record, and notice is considered served to the respondent if it has been served to the Attorney of Record. 28 The Attorney of Record is any attorney who previously filed an E-28 (Notice of Appearance in Immigration Court) on behalf of the respondent, as long as they have not filed a motion to substitute counsel or a motion to withdraw from the case. Sometimes counsel forgets to file a motion to substitute counsel or withdraw from a case even if they are no Id. 23 INA 265(a). 24 INA 239(a)(2)(B), 242B(a)(2), (b)(2) (pre-iiraira). 25 See e.g., Khan v. Ashcroft, 374 F.3d 825, 828 (9th Cir. 2004) (distinguishing translation requirement for expedited removal proceedings); Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1155 n.4 (9th Cir. 2004) (discussing congressional intent to vest discretion for translation in the agency). 26 Matter of M-R-A-, 24 I&N Dec. 665, 673 (BIA 2008). See also Matter of C-R-C-, 24 I&N Dec. 677, 679 (BIA 2008)(holding that presumption of delivery sent by regular mail is also overcome by submitting an affidavit stating respondent did not receive continue, has continued to reside at address, other circumstantial evidence such as an incentive to appear and proof of due diligence). 27 Matter of M-R-A-, 24 I&N Dec. 665, 674 (BIA 2008). 28 INA 239(a)(1), (a)(2)(a).

11 longer representing the respondent, which can lead to the former respondent not receiving notice of the removal hearing and being ordered removed in absentia. If legal counsel failed to provide notice of the hearing to the respondent under such circumstances, consider an ineffective assistance of counsel claim discussed below. An MTRR of an in absentia order based on lack of notice may be filed at any time. However, an MTRR of an in absentia order is more likely to be granted if the respondent takes steps toward filing an MTRR as soon as they become aware of a removal order. Although a showing of diligence is not required, some IJs and the BIA have noted it as a positive factor. 29 Please note that notice rules are very different for pre-iiraira cases, but this Primer does not discuss the pre-iiraira provisions because the vast majority of the recently arrived families from Central America and Mexico have removal orders and not deportation orders (pre-iiraira). Exceptional Circumstances Preventing Appearance The respondent may file an MTRR of an in absentia order if he or she failed to appear because of exceptional circumstances. 30 Such motions are generally due within 180 days of the final removal order, but federal courts have recognized that the filing deadlines for motions to reopen are subject to equitable tolling. 31 The term exceptional circumstances is defined in the INA and implementing regulations and refers to exceptional circumstances....beyond the control of the [respondent]. 32 Exceptional circumstances is a stricter standard than reasonable cause, which is the standard for reopening in absentia removal orders in exclusion proceedings and deportation cases filed prior to June 13, However, U.S. Courts of Appeals case law suggests that the exceptional circumstances standard is not as restrictive as beyond one s control suggests. 34 Recent unpublished BIA case law also suggests that families need not show circumstances beyond one s control See Christian-Rudolf-Pflugler, A , (BIA March 31, 2016) (rescinding an in absentia order under the totality of the circumstances presented in the case, including the respondent's diligence in filing the motion and the absence of opposition from the DHS), unpublished decision available at BIA-March INA 240(b)(5)(C)(i); 8 C.F.R (b)(4)(ii). 31 Supra notes INA 240(e)(1); 8 C.F.R (b)(4)(ii). 33 Matter of N-B-, 22 I&N Dec. 590, 593 (BIA 1999). 34 See e.g., Kaweesa v. Gonzales, 450 F.3d 62 (1st Cir. 2006) (holding that exceptional circumstances proven by affidavits showing the respondent mistook the May 13 hearing date for May 17, lack of indication that she was trying to delay proceedings, and claim for asylum indicating that the harm of returning to Uganda is great). 35 See, e.g., Oneyda Carolina Sierra-Manca, A (BIA June 17, 2016) (reopening proceedings sua sponte under the totality of the circumstances for a mother and minor son who were ordered removed in absentia after failing to report a change of address because she assumed an immigration officer monitoring her case would do so); Hector Fransua Mach-Chavez, A (BIA March 14, 2016) (overturning IJ denial of motion to reopen because respondent s mistaken belief that the location of his hearing had been changed was an exceptional circumstance), unpublished decision available at Hector-Fransua-Mach-Chavez-A BIA-March ; Jose Manuel Oliva-Ramirez, A (BIA Dec. 22, 2015) (holding that respondent s inability to secure transportation to out-of-state hearing constituted exceptional circumstances), unpublished decision available at Dec Cf. Jorge Antonio Haro Pena, A (BIA Dec. 17, 2013) (holding that exceptional circumstances must be established through review of the particularized facts, not general per se rules), unpublished decision available at scribd.com/doc/ /jorge-antonio-haro-pena-a bia-dec

12 Examples of exceptional circumstances can include: Battery or extreme cruelty to the alien or any child or parent of the alien 36 Serious illness Illness can be an exceptional circumstance, but you will need to provide adequate documentation to show that illness is an exceptional circumstance 37 Serious illness or death of a spouse, child, or parent Ineffective assistance of counsel that interfered with attendance at the hearing 38 This is not an exhaustive list of what constitutes exceptional circumstances. Subscribing to the Immigrant and Refugee Appellate Center s Index of Unpublished BIA decisions 39 provides important insight into what the BIA has recently found to constitute exceptional circumstances. As noted above, recent unpublished BIA case law suggests that that the confusion Central American asylum-seeking families face while pro se navigating the removal system may qualify as an exceptional circumstances factor. Unpublished BIA decisions are not binding on the Immigration Courts, but proper citation and inclusion of the decision with the filing of an MTRR of an in absentia order will be persuasive and helpful in guiding the IJ. 40 The Immigration Courts generally employ a totality of the circumstances test to determine whether the respondent s reason for not attending the hearing is an exceptional circumstance. 41 Circuit court opinions verify that this is the correct test. 42 As such, the respondent should include all the factors that contributed to the failure to appear and argue that in the totality of the circumstances, there were exceptional circumstances. For example, while the BIA has held that an inability to leave employment may not be an exceptional INA 240(e)(1). 37 See Matter of J-P-, 22 I&N Dec. 33, 34 (BIA 1998) (denying relief for severe headache due in part to lack of documentation); Matter of Singh, 21 I&N Dec. 998, 1000 (BIA 1997) (finding stepson s illness to qualify as an exceptional circumstance). But see Lonyem v. U.S. Att y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003) (upholding the IJ s determination that a nurse s affidavit stating that petitioner had been treated for malaria the day before the hearing was not credible in the absence of further documentation and because he had failed to contact the Immigration Court on the day of the hearing); Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir. 2002) (finding inadequate a hospital form that failed to indicate that petitioner s asthma attack was a serious health condition ). 38 Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996). 39 Immigrant and Refugee Appellate Center s Index of Unpublished BIA decisions, available at index. 40 ICPM at Appendix J. 41 Matter of W-F-, 21 I&N Dec. 503, 509 (BIA 1996), citing H.R. Conf. Rep. No. 955, 101st Cong., 2d Sess. 132 (1990); see also Matter of Grijalva, 21 I&N Dec. 472, 474 (BIA 1996) (considering counsel s misdirection and respondent s LPR status in evaluation of exceptional circumstances). 42 Murillo-Robles v. Lynch, 2016 WL (1st Cir. 2016); Accord Herbert v. Ashcroft, 325 F.3d 68, 72 (1st Cir. 2003) ( We think this is one of those rare cases in which exceptional circumstances exist. The totality of the circumstances must be considered. ); Denko v. INS, 531 F.3d 717, n.3 (6th Cir. 2003) ( An IJ considers the totality of the circumstances when making a determination that exceptional circumstances exist. ); Gjokaj v. INS, 96 Fed.Appx. 301 (6th Cir. 2004) ( In determining whether exceptional circumstances exist in any given case, the IJ shall consider the totality of the circumstances. ); Singh v. INS, 295 F.3d 1037, 1040 (9th Cir. 2002) ( This court must look to the particularized facts presented in each case in determining whether the petitioner has established exceptional circumstances. ).

13 circumstance, 43 explaining all the reasons why this employment is essential in a single mother household and how taking one day off from work may jeopardize the essential employment that provides for young children could tip the scales in a totality of the circumstances analysis. It is especially important to include information on the respondent s attempts to contact the Immigration Court on the day of the hearing or explain why the respondent could not do so. 44 One reason the respondent may not have been able to contact the Immigration Court is the lack of phone number on the documents issued by DHS or the Immigration Court, combined with the respondent s inability to search the internet for this information. Ineffective Assistance of Counsel Ineffective assistance of counsel that causes an individual to fail to appear for his or her hearing can be an exceptional circumstance warranting reopening of an in absentia removal order. 45 Nearly every U.S. Court of Appeals recognized that the motion to reopen deadline can be equitably tolled where failure to meet the deadline was caused by ineffective assistance of counsel and the respondent pursued his or her claims diligently. 46 Thus, consider filing a motion to reopen an in absentia order based on ineffective assistance of counsel outside of the 180-day filing deadline for MTRRs based on exceptional circumstances. A motion to reopen based on ineffective assistance of counsel generally must establish both that: (1) Counsel s performance was deficient, and (2) Counsel s performance caused prejudice to the client. The standard for prejudice varies among the U.S. Courts of Appeals, though generally the respondent must show a reasonable probability that results of proceedings would be different Matter of W-F-, 21 I&N Dec. 503 (BIA 1996) (finding that inability to leave employment on a fishing vessel was not an exceptional circumstance when the deportation hearing had been scheduled long in advance). 44 Matter of J-P-, 22 I&N Dec. 33, 35 (BIA 1998) (observing that giving notice of respondent s inability to attend hearing was a minimal and logical step ); Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002) (finding that the BIA properly considered respondent s failure to notify the Immigration Court when the respondent did not assert any justification for the failure); Morales v. INS, 116 F.3d 145, 149 (5th Cir. 1995) (faulting respondent for failing to contact the Immigration Court until over two weeks after the hearing). 45 Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996). 46 E.g., Iavorski, 232 F.3d at 134; Mahmood v. Gonzales, 427 F.3d 248, (3d Cir. 2005); Mezo, 615 F.3d at 620; Pervaiz, 405 F.3d at ; Valencia v. Holder, 657 F.3d 745, 748 (8th Cir. 2011); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011); Riley, 310 F.3d at 1258; Ruiz-Turcios, 717 F.3d at 851; see also Davies v. INS, 10 Fed. Appx. 223, 224 (4th Cir. 2001). 47 See e.g., Contreras v. Att y Gen., 665 F.3d 578, 584 (3d Cir. 2012)(denying the petition for review based on respondent ineligibility and unlawful presence that would have made it extremely unlikely or impossible to win relief ); Dakane v. Att y Gen., 399 F.3d 1269, 1274 (11th Cir. 2004)(denying the petition for review based on respondent s failure to put forth evidence of how his attorney s inactions prejudiced his proceedings); Morales Apolinar, 514 F.3d at 898 (holding that prejudice requires showing that deficient performance may have affected the outcome of the proceedings, and noncitizen need only show plausible grounds for relief ) (quotations omitted); Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (holding that alien must show that his attorney's failure to file for 212(c) relief caused him actual prejudice by making a prima facie showing that he would have been eligible for the relief ); Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir. 1994) ( [P]roving prejudice requires the Petitioner to make a prima facie showing that had the application been filed, he would have been entitled to relief from deportation.... ). But see Sako v. Gonzales, 434 F.3d 857, 864 (6th Cir. 2006) ( [A noncitizen] must establish that, but for the ineffective assistance of counsel, he would have been 13

14 A motion to reopen based on ineffective assistance of counsel also generally must comply with a set of procedural requirements set out by the BIA in Matter of Lozada, 48 in addition to the general requirements set forth in the statute and the regulations at INA 240(c)(7); 8 C.F.R (c), (b). Lozada requires: (1) an affidavit or declaration by the respondent detailing the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make; (2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled against them and be given an opportunity to respond, 49 and; (3) that the motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel s ethical or legal responsibilities, and if not, why not. To prove Lozada compliance, consider including the following with the motion to reopen: an affidavit from the respondent describing the actions of prior counsel that were ineffective, a letter to prior ineffective counsel explicitly stating intention to file a motion to reopen based on ineffective assistance of counsel and requesting a response, the complaint filed with the appropriate state disciplinary authority, and an affidavit from current counsel stating what response, if any, prior counsel provided. For a sample letter to prior ineffective counsel, see Template: Sample Letter to Ineffective Counsel. While U.S. Courts of Appeals generally have upheld Lozada, 50 in limited circumstances, some courts have excused respondents failure to strictly comply with one or more of the procedural requirements set forth in the case and instead have allowed a showing of substantial compliance with the procedural requirements. 51 However, fully complying with all of the Lozada requirements whenever possible is always the best practice. Though this is the current standard, on July 28, 2016, in response to Matter of Compean, 25 I&N Dec.1 (AG 14 entitled to continue residing in the United States. ) I&N Dec. 637, 639 (BIA 1988); see also Matter of Assaad, 23 I&N Dec. 553, 556 (BIA 2003) (upholding Lozada finding ineffective assistance of counsel in immigration proceedings through the respondents Fifth Amendment due process right to a fair immigration hearing, which may be denied if counsel prevents the respondent from presenting his or her case in a meaningful way). 49 The BIA has previously interpreted this to mean that former counsel must receive the substance of the allegations before filing the motion and that the respondent must invite former counsel to respond. 50 See, e.g., Zheng v. U.S. Dept. of Justice, 409 F.3d 43 (2d Cir. 2005) (holding that the BIA did not abuse its discretion by following Lozada s requirements); Hernandez-Moran v. Gonzales, 408 F.3d 496 (8th Cir. 2005) (affirming denial of ineffective assistance of counsel claim on Lozada grounds); Dakane v. U.S. Attorney General, 399 F.3d 1269 (11th Cir. 2004) (citing with approval, including requirement that prejudice must be shown); Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004) (requiring affidavit regarding attorney conduct where facts are not plain on the record, as well as a showing of prejudice); Gbaya v. US Attorney General, 342 F.3d 1219 (11th Cir. 2003) (holding that the BIA did not abuse its discretion by using Lozada s requirements as a threshold screening process for ineffective assistance of counsel claims); Hamid v. Ashcroft, 336 F.3d 465 (6th Cir. 2003) (upholding BIA determination that failure to comply with Lozada requirements results in forfeiture of ineffective assistance claims); Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th Cir. 2003) (citing with approval, but noting that the requirements are not sacrosanct ); Lara v. Trominski, 216 F.3d 487 (5th Cir. 2000) (citing with approval); Hernandez v. Reno, 238 F.3d 50 (1st Cir. 2001) (citing with approval). 51 E.g., Yi Long Yang v. Gonzales, 478 F.3d 133, (2d Cir. 2007); Fadiga v. Att y Gen., 488 F.3d 142, 156 (3d Cir. 2007); Barry v. Gonzales, 445 F.3d 741, 746 (4th Cir. 2006); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002); Cf. N Diom v. Gonzales, 442 F.3d 494, 505 (6th Cir. 2006) (Gilman, J., dissenting) (noting that majority adjudicated the case with no reference to noncitizen s failure to comply with Lozada requirements); Dakane v. Att y Gen., 399 F.3d 1269, 1274 (11th Cir. 2004) (requiring noncitizens to demonstrate substantial, if not exact, compliance with the procedural requirements of Lozada ).

15 2009), EOIR published a proposed rule for amending the Lozada framework to be included at 8 C.F.R The provisions of the proposed rule would apply only to motions to reopen filed with the Immigration Court or the BIA on or after the effective date of the final rule. The provisions of the proposed rule would cover conduct that occurred only after the removal proceedings have commenced at the Immigration Court. If and once this proposed regulation is adopted as a final rule, we will update this Primer to include guidance on this new rule. Motions to Reopen under Sua Sponte Authority Absent lack of notice or exceptional circumstances, respondents may request that an IJ reopen an in absentia removal order based on their authority to reopen a case sua sponte. An IJ relying on sua sponte authority may reopen or reconsider a removal order regardless of any time and number restrictions that may exist. 53 The BIA has characterized sua sponte authority as an extraordinary remedy reserved for truly exceptional situations. 54 The BIA has recognizes its own sua sponte authority to reopen or remand proceedings when appropriate, such as for good cause, fairness, or reasons of administrative economy, and that technical deficiencies alone would not preclude such action. 55 However, the BIA has found that an IJ s sua sponte authority should not be used as a general cure for filing defects or to otherwise circumvent the regulations, when enforcing them might result in hardship. 56 To make a successful argument to the BIA or IJ, respondents must meet the sua sponte standard. The standard for sua sponte authority is a type of exceptional circumstances-plus standard, which takes into consideration equities of the case, strength of the asylum claim as well as other sympathetic factors. 57 For example, the BIA recently exercised sua sponte authority in an in absentia matter in which the respondents, a woman and her child, Fed. Reg See also Motions To Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel, available at C.F.R (a) (providing IJs with authority for sua sponte reopening); 8 C.F.R (b)(1) (providing IJs with authority to reopen any proceedings in which the IJ made a decision); 8 CFR (d) (granting the BIA authority to return any case to an IJ for further action as may be appropriate, without entering a final decision on the merits of the case. ). 54 Matter of G D, 22 I&N Dec. 1132, 1134 (BIA 1999). 55 Matter of Yewondwosen, 21 I&N Dec. 1025, 1027 (BIA 1997). 56 Matter of J J 21 I&N Dec. 976, 984 (BIA 1997). 57 In re Casillas, A (BIA Aug. 30, 2016), available at Casillas-A BIA-Aug (holding that an attorney failing to give the respondent a hearing notice is cause for sua sponte reopening); In re E-A-R-C-, AXXX XXX 125 (BIA 2016), available at E-A-R-C-AXXX-XXX-125-BIA-June (holding that an interpreter saying the hearing was on wrong date despite DHS opposing by saying court issued correct written hearing notice, was cause for sua sponte reopening); In re Vricic (A ) (BIA 2016), available at (finding that car troubles, illness, and other issues are exceptional circumstances for purposes of sua sponte reopening); In re Arevalo Lopez, A (BIA 2016), available at A BIA-June (reopening 2004 order based on sua sponte authority because abusive ex destroyed docs); In re Taunaholo, A )(BIA 2016), available at BIA-May (finding sua sponte authority to reopen case for respondent who lost hearing notice and misremembered hearing date); In re de Leon Galono, A (BIA 2015), available at May-de-Leon-Galono-A BIA-Sept (reopening case with sua sponte authority for respondent who failed to appear because of family related stress); In re Molinas-Pena, A (BIA Nov. 10, 2015), available at doc/ /mirna-molinas-pena-a b.i.a.-nov ; In re Henry Noe Hernandez Diaz, A (BIA April 11, 2016), available at (last visited May 11, 2016). 15

16 received an in absentia removal order because they mistakenly assumed that changing their address with an ICE officer during a check-in would also inform the Immigration Court of their change of address. 58 Furthermore, the BIA has found that a fundamental change in the law also qualifies as an exceptional situation that merits the BIA s use of sua sponte authority. 59 In an MTRR of an in absentia order for a respondent with a strong claim, you may choose to argue in the alternative that an Immigration Court should use its sua sponte authority to rescind an in absentia removal order. 60 Make clear that any sua sponte request is an argument made in the alternative in order to maximize the ability to seek judicial review since the U.S. Courts of Appeals generally have not found jurisdiction for judicial review over sua sponte decisions. 61 Other Motions to Reopen No Oral Notice of the Consequences of Failing to Appear Respondents must receive oral warnings in their native language or a language the respondent understands regarding the time and place of the proceedings and the consequences of failing to appear at the hearing. 62 Oral warnings of the consequences of failing to appear are confirmed via the DHS officer and respondent s signature on the NTA certificate of service, which is on the bottom of the second page of the NTA. Note that not all respondents who have been scheduled to appear in Immigration Court have been served with an NTA. Therefore, do not assume that the respondent received the required oral warnings just because removal proceedings commenced. Respondents who did not receive oral warnings of the consequences of failing to appear may be able to reopen their cases even if the IJ properly entered an in absentia order of deportation. If a respondent is eligible for a form of relief that was unavailable at the time of the in absentia hearing and the respondent lacked the required oral notice, the respondent can seek reopening of the removal proceedngs. However, such a motion to reopen would be filed within 90 days per 8 C.F.R (b)(1) and (3) rather than a motion to rescind and reopen an in absentia order based on lack of notice of a hearing or exceptional circumstances under INA 240(c)(7) In re Sierra-Manca, A (BIA 2016), available at Sierra-Manca-A BIA-June (reopening removal order for a woman and child with sua sponte authority because mother assumed the ICE officer was going to inform court of the change of address); 59 Matter of G D, 22 I&N Dec (BIA 1999) C.F.R (b)(1). 61 E.g., Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, (3d Cir. 2003); Doh v. Gonzales, 193 F. App'x 245, 246 (4th Cir. 2006) (per curiam) (unpublished); Enriquez- Alvarado v. Ashcroft, 371 F.3d 246, (5th Cir. 2004); Harchenko v. INS, 379 F.3d 405, (6th Cir. 2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Tamenut v. Mukasey, 521 F.3d 1000, (8th Cir. 2008) (en banc) (per curiam); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002); Belay-Gebru v. INS, 327 F.3d 998, (10th Cir. 2003); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999) (abrogated by Avila-Santoyo v. US Att y Gen., 713 F.3d 1357 (11th Cir. 2013)). 62 INA 240(b)(7). 63 INA 240(c)(7)(C)(i); 8 C.F.R (c)(2), (b)(1) (requiring the motion be filed within 90 days of final order and that an application for relief is submitted with the motion); see also Matter of M-S-, 22 I&N Dec. 349, 356 (BIA 1998) (holding that the IJ can grant a motion to reopen under INA 240(c)(7) for an in absentia order regardless of whether there are exceptional circumstances or a lack of notice).

17 Changed Country Conditions Respondent(s) may file a motion to reopen removal proceedings due to changed country conditions. 64 This motion is not the same as an MTRR of an in absentia order. In Matter of J-G-, the BIA articulated that (1) respondents who seek asylum based on changed country conditions to reopen proceedings may do so even when they do not satisfy the requirements for rescinding an in absentia order, and (2) despite the 180-day deadline for an MTRR based on exceptional circumstances, MTRs based on changed country conditions are not subject to the time/number limits on MTRRs. 65 Unlike an MTRR of an in absentia order under INA 240(b)(5)(C), an MTR in this case does not automatically stay the removal of the respondent(s). 66 However, if the respondent(s) are filing for asylum, withholding of removal under the INA or withholding of removal under the Convention against Torture (CAT) and the basis of the motion to reopen is changed country conditions in the respondent(s) country of nationality, there is no deadline or limitation on how many motions may be filed. 67 Changed country conditions is defined in the regulations as material evidence in the case that was not available and could not have been discovered or presented at the previous proceeding. 68 Changed country conditions can be a series of events, such as a political coup, that greatly changes the respondent(s) country of nationality and their ability to stay safe. However, the definition of changed country conditions is sufficiently broad that it also includes evidence, including affidavits, establishing new threats or persecution of family members or gathering of new evidence that was unavailable at the time that proves persecution. Asylum-seekers reopening a removal order based on changed country conditions must include new evidence or information that would help respondent(s) qualify for asylum or withholding. Presenting Underlying Asylum Claims Any MTRR or MTR of an in absentia order filed with an accompanying declaration should also articulate the family s underlying claim for asylum and related relied. In other words, in the case of asylum, why the family is unable or unwilling to return to their country of origin because of past persecution or a well-founded fear of future persecution on account of (1) race, (2) religion, (3) nationality, 64 INA 240(c)(7)(C)(ii); 8 C.F.R I&N Dec. 161 (BIA 2013) C.F.R ( The filing of a motion to reopen under this section shall not automatically stay the removal of the alien. However, the alien may request a stay and, if granted by the Immigration Judge, the alien shall not be removed pending disposition of the motion by the Immigration Judge. ). 67 Id C.F.R

18 (4) political opinion, or (5) membership in a particular social group. See INA 101(a)(42). Furthermore, if you do not have any concerns that there are inaccuracies or misinterpretations in the respondent(s) credible fear interview(s)(cfi) or reasonable fear interview(s)(rfi), you may also include the transcript as an exhibit in the MTRR or MTR as proof of eligibility for asylum and related relief. For information on asylum law, we recommend consulting one of these excellent existing resources: Dree K. Collopy, AILA s Asylum Primer: A Practical Guide to U.S. Asylum Law and Procedure (7 th Ed. 2015). National Immigrant Justice Center, Basic Procedural Manual for Asylum Representation Affirmatively and In Removal Proceedings (May 2016), available at NIJC%20Asylum%20Manual_05%202016_final.pdf. Chapter 9 of AILA s Representing Clients in Immigration Court (4 th Ed. 2016), Edited and updated by Michelle N. Mendez The Center for Gender & Refugee Studies also has a variety of publications on Gender Asylum, Children s Asylum, Gang Asylum, and Gender-Based Violence claims, which can be found at: uchastings.edu/ publications. The Center for Gender & Refugee Studies also has a variety of publications on Gender Asylum, Children s Asylum, Gang Asylum, and Gender-Based Violence claims, which can be found at: publications. In most cases, it will be beneficial to submit the family s I-589 asylum application 69 along with the MTRR or MTR of an in absentia order, not only to further establish asylum eligibility, but also to lay the foundation for a stronger one-year filing deadline argument. Previously, the I-589 had to be filed in open court during a master calendar hearing, but as of September 14, 2016 the I-589 may be filed in person at the window or via mail at the Immigration Court with jurisdiction over the case, thanks to a new Department of Justice EOIR Operating Policies and Procedures Memorandum (OPPM). 70 Therefore, inclusion of the I-589 as an attachment to the MTRR or MTR filed in person at the window or via mail should suffice to comply with the one-year filing deadline. 71 For those whose one-year filing deadline preceded the September 14, 2016 OPPM, argue that the unique See 8 C.F.R (b)(3) ( Asylum applications shall be filed directly with the Immigration Court having jurisdiction over the case in the following circumstances:... ). After completion of exclusion, deportation, or removal proceedings, and in conjunction with a motion to reopen pursuant to 8 CFR part 1003 where applicable, with the Immigration Court having jurisdiction over the prior proceeding. Any such motion must reasonably explain the failure to request asylum prior to the completion of the proceedings. ). I-589s and instructions are available on USCIS s website. 70 Michael C. McGoings, Chief Immigration Judge (Acting), Operating Policies and Procedures Memorandum 16-01: Filing Application for Asylum, Sept. 14, 2016, available at C.F.R (b)(3)(ii).

19 circumstances Central American mothers face amount to extraordinary circumstances relating to the delay in filing the I For example, the BIA recently issued a favorable unpublished decision involving a mother from El Salvador fleeing domestic violence who filed her application after the one-year filing deadline. 73 In that case, the mother s first master calendar hearing was scheduled several months after her one-year filing deadline. The mother submitted her completed I-589 at that master calendar hearing. The BIA ruled that she was not barred from asylum by the one-year filing deadline because she had filed the I-589 at the earliest opportunity at her initial master calendar hearing, the scheduling of which was outside of her control. These circumstances thus amounted to extraordinary circumstances. 74 Why to Include Asylum and/or Other Claims for Relief An MTRR or MTR respondent who has demonstrated prima facie eligibility for asylum or other relief/ protections has an incentive to appear at Immigration Court hearings and obtain that relief, which supports the argument that they would have appeared in court had they been able to do so. Such a showing also demonstrates that the respondent is prima facie eligible for relief/protection in reopened proceedings. In all cases, the MTRR or MTR of an in absentia order becomes part of the record once it is filed. Thus, the statement of facts in the MTRR or MTR and the associated affidavit or declaration should be crafted with an understanding of how the respondent s experience fits into a legal claim for asylum. Sources and Additional Resources Much of the above information was synthesized from the following resources: Executive Office of Immigration Review, U.S. Dept. of Justice, Motions to Reopen Guide, justice.gov/sites/default/files/eoir/legacy/2014/08/15/motions_to_reopen_guide.pdf Ninth Circuit Court of Appeals, Motions to Reopen or Reconsider Immigration Proceedings, in Ninth Circuit Immigration Outline, Executive Office for Immigration Review, U.S. Dept. of Justice, BIA Precedent Chart M-Rec (August 21, 2015), Kristin Macleod-Ball and Beth Werlin, American Immigration Council, Seeking Remedies for Ineffective Assistance of Counsel in Immigration Cases ( January 2016), sites/default/files/research/seeking_remedies_for_ineffective_assistance_of_counsel_in_immigration_ cases_practice_advisory.pdf. Beth Werlin, American Immigration Council, Practice Advisory: Rescinding an In Absentia Order of Removal (March 2010), 72 INA 208(a)(2)(D). 73 Available at 74 INA 208(a)(2)(D). 19

20 American Immigration Council, Penn State Law Center for Immigrant Rights, ABA Commission on Immigration, Practice Advisory: Notices to Appear: Legal Challenges and Strategies (June 2014), legalactioncenter.org/sites/default/files/notices_to_appear_fin_ pdf Center for Human Rights and International Justice at Boston College Post-Deportation Human Rights Project, Post-Departure Motions to Reopen or Reconsider (December 2012), system/files/area/conference/ilroundtable/ilr13_aabostoncollegelawschoolpostdeparture.pdf. Vikram K. Badrinath, Helen Parsonage, and Jenna Peyton, Time-Barred Motions to Reopen Tips and Tricks for Success, American Immigration Lawyers Association s Immigration Practice Pointers ( Ed.), 20

21 III. OVERVIEW OF PROCEDURE AND FAQS Q: How can a respondent ascertain whether a removal order has been issued? If the respondent is unsure whether or when an IJ has issued a removal order in their case, call the Executive Office of Immigration Review (EOIR) Hotline ( ) with the respondent s alien registration number (A#) and follow the instructions to check their case status and the date of the order of removal, if applicable. 75 Option #3 will provide prior removal order information. Note that mothers and children who entered the United States for the first time together will typically have A#s that are one digit apart. For example, if the mother s A# is , the child s A# may be or As such, if you do not have the A# for the child, try entering an A# that is one digit apart from the mother s A#. Q: How can I get access to the Immigration Court s file for the respondent? Filing a Freedom of Information Act (FOIA) request is perhaps the easiest manner to obtain a copy of the respondent s Immigration Court file unless in-person review of the Immigration Court file or record of proceedings is possible at the Immigration Court that issued the in absentia order. 76 Under the FOIA statute, the government is mandated to provide a copy of the respondent s documents within 20 days (excepting Saturdays, Sundays, and legal public holidays) of the request. 77 The government has 10 additional business days in cases of unusual circumstances if written notice is provided setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched. 78 Although fast-track (Track 3) FOIA processing is an option for respondents currently in removal proceedings, respondents who have already been ordered removed, but who are attempting to reopen their cases, cannot benefit from this fast-track FOIA processing. Send EOIR FOIA request for documents to: EOIR.FOIARequests@usdoj.gov. 79 If receiving the FOIA disclosures puts the respondent beyond the 180-day filing deadline for an MTRR, file the MTRR before the deadline. Consider filing the FOIA request as well, and, if supplementation is required, argue that this numerical limitation should be equitably tolled because this information was not available to a diligent attorney within the relevant time period. 75 Even if the A# is not in the system, it is possible the person has an expedited removal order or a reinstated order of removal. Ask the client about any prior attempted entries through the border to ascertain whether this could be an issue in the case. Also, ask to see copies of documents given to the client while detained. 76 Each Immigration Court has its own procedures governing requests to review files/documents, hearing tapes or CDs. Check with the relevant Immigration Court to learn more about that court s request procedures. Generally, the Immigration Court will require the respondent s written permission to review the record U.S.C. 552(a)(6)(A)(i). 78 Id. 79 For more information, visit 21

22 Q: When might an MTRR or MTR be appropriate in an in absentia removal order case? An asylum-seeker who has received an in absentia removal order might file an MTRR if he or she is at risk of removal and (1) has a qualifying exceptional circumstance that caused him or her to miss his or her hearing, or (2) did not receive legally sufficient notice of his or her Immigration Court hearing before the IJ. Filing an MTRR under one of these two grounds will automatically stay the family s removal while the motion is pending before the IJ. 80 However, if your client is in danger of imminent removal, you must contact the local ICE office to alert them that you have filed an MTRR. 81 Respondents may choose to file an MTRR even if they are not at imminent risk of removal if it is close to the 180-day deadline and an MTRR for exceptional circumstances would not be timely otherwise. Petitioners may also wish to file an MTRR or MTR if the one-year filing deadline for filing an asylum application is approaching. If an individual has a removal order in place and an MTRR or MTR is not granted before the 1-year filing deadline, mailing or attempting to file an I-589 with the Immigration Court and lodging the I-589 with USCIS may help preserve the ability to apply for asylum for an individual or family with a removal order in place. However, the Immigration Court may not consider an asylum application to be tolling until it is resubmitted after an MTRR or MTR is granted. An individual or family may also want to continue fighting his or her case based on one of the above-mentioned grounds, particularly if there is an immigration-related or criminal-related incentive for doing so. Such incentives include removing the INA 212(a)(9) prior removal orders inadmissibility grounds to adjustment of status and eliminating the predicate order to 8 U.S.C Reentry After Deportation (Removal) prosecution INA 240(b)(5)(C) ( The filing of the motion to reopen described in [INA 240(b)(5)(C)((i) and (ii)] shall stay the removal of the alien pending disposition of the motion by the immigration judge. ); see also INA 242B(c)(3) (pre-iiraira); 8 C.F.R (b)(4)(ii) (removal orders); 8 C.F.R. 242B(c)(3) (deportation orders, pre-iiraira). 81 If your client is at risk of removal, you must contact the local ICE office to alert them that you have filed an MTRR, which automatically stays a removal. You should obtain a stamped copy of the MTRR cover at the window of the Immigration Court and send that page by fax to ICE to demonstrate that they must stop your client s imminent deportation. Even though an individual or family has 180 days to file an MTRR to reopen an in absentia removal order, ICE will often begin the process of deportation before the end of the 180 days. For this reason, it is critical to ask your client whether they have received a notice from ICE asking them to report for their deportation.

23 Q: Why would a family opt not to file an MTRR or MTR in an in absentia removal case? Immigration Courts consider respondents usually only have one opportunity to file a motion to reopen 82 as the regulations for MTRs at 8 C.F.R (b)(4)(ii) contain a numerical limitation of only one motion. A family should make their first motion as strong as possible through the assistance of competent legal counsel. However, affordable and competent legal counsel can be difficult for asylum-seekers to find. Those who have been lucky to find affordable and competent legal counsel for representation for an MTRR or MTR of an in absentia order may want guarantees that counsel will provide representation on the appeal if the IJ denies the MTRR or MTR, or at their merits hearing should the IJ rescind the in absentia order and reopen the case. In the absence of affordable, competent, and committed legal counsel, a family may choose to not place themselves in further uncertainly or risk of detention by Immigration and Customs Enforcement (ICE). Q: When can an MTRR or MTR be filed in an in absentia removal case? An MTRR in which a respondent demonstrates that he or she did not receive notice of the hearing can be filed at any point after the IJ issues a final order of removal. This means that there is no time limit for an MTRR of an in absentia order alleging insufficient notice. 83 An MTRR of an in absentia order in which a respondent claims exceptional circumstances generally must be filed within 180 days after a final order of removal. 84 However, ten courts of appeals have held that filing deadlines may be equitably tolled in certain circumstances. 85 If the respondent has a colorable argument for both exceptional circumstances and insufficient notice, as discussed in later sections, you should include both claims in the MTRR and file within the 180-day deadline (or argue that the deadline should be equitably tolled). 86 For most MTRs, the deadline generally is 90 days. 87 Note that under certain circumstances, such as changed country conditions, IJs and the BIA can reopen proceedings beyond this deadline to allow a respondent to apply for relief even if the standards for an MTRR or MTR are not otherwise met C.F.R (b)(1). Some circuits have held that this numeric limitation is subject to equitable tolling. E.g., Zhao v. INS, 452 F.3d 154 (2d Cir. 2006); Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003); Davies v. United States, 10 Fed. Appx. 223 (4th Cir. 2001) (per curiam). Some advocates have further argued that MTRRs related to in absentia removal orders are not subject to this numerical limitation because the numerical bar is not mentioned as it pertains to MTRRs for in absentia orders in section 240(b) (5)(C) of the INA. 83 INA 240(c)(7)(A); 8 C.F.R (b)(1). 84 INA 240(b)(5)(C)(i). 85 Equitable tolling is a long-recognized legal principle through which courts can waive the application of a filing deadline where a person acted diligently, but nonetheless was unable to comply with a deadline. The Courts of Appeals have generally recognized that the filing deadlines at INA 240(b)(5)(C)(i) and/or 240(c)(7)(C)(i) are subject to tolling. See supra notes Under Supreme Court precedent, an individual is entitled to equitable tolling if (1)... he has been pursuing his rights diligently, and (2)... some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Most courts have recognized that ineffective assistance of counsel that prevented timely filing of a motion to reopen constitutes an extraordinary circumstance. See supra notes INA 240(c)(7)(C)(i); 8 C.F.R (c)(2), (b)(1). See supra note See, e.g., Matter of J-G-, 26 I&N Dec. 161 (BIA 2013); Matter of M-S-, 22 I&N Dec. 349 (BIA 1998) (en banc). 23

24 Q: What are factors respondents should consider when deciding whether to file an MTRR or MTR in an in absentia removal case? Some factors to consider are: Strength of the MTRR or MTR: was there an exceptional circumstance or insufficient notice? Timing: if they did receive sufficient notice, are they within 180 days of the entry of the removal order? If not, is there a viable argument that the 180-day deadline should be equitably tolled? Strength of the underlying asylum case: is it likely the respondent(s) would be granted asylum or other relief if proceedings were reopened? Likelihood of removal: are respondents at present likely targets of government enforcement operations? 89 Country condition changes: have respondents received further threats or their family been harmed since arriving in the United States? Other changed circumstances: have respondents circumstances in the United States changed in a way that makes it more dangerous to return to their country of origin? For example, developing a debilitating illness making it difficult to travel or avoid persecution. Q: Where should the MTRR or MTR be filed? An MTRR or MTR of an in absentia order should be filed with the Immigration Court that issued the order of removal, not the BIA. Denials of an MTRR or MTR of an in absentia order may be appealed to the BIA. It is very important to file an MTRR or MTR that complies with the Immigration Court Practice Manual (ICPM) with the correct venue, especially if the 180-day filing deadline is approaching. For more information on how to file an MTRR or MTR of an in absentia order, see MRR / MTR And Change Of Venue Checklist. Q: What documents must accompany the MTRR or MTR of an in absentia order? The ICPM explains in detail the MTRR and MTR requirements. Anytime Immigration Court practice is implicated, look to the ICPM for guidance. The main requirement for an MTRR of an in absentia order is a detailed affidavit or declaration from the lead respondent describing the facts that support the basis for the MTRR (no notice or exceptional circumstances). Note that Form EOIR-28, Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court, may not be filed online using the EOIR eregistry system for in absentia removal cases because the case is technically closed with EOIR and eregistry only supports active case filings. Therefore, file the Form EOIR-28 as a hard copy along with the MTRR or MTR of For example, in January of 2016, the U.S. government initiated raids that targeted immigrant families in Georgia, Texas, and North Carolina. In May of 2016, government sources stated that immigrant families who arrived after January 1, 2014 were a priority for raids and removal. See Julia Edwards, Exclusive: U.S. plans new wave of immigrant deportation raids, Reuters (May 12, 2016),

25 an in absentia order package. If the respondent has yet to file Form I-589, respondent may wish to file the I-589 asylum application along with the MTRR or MTR. Q: Is a fee required for an MTRR or MTR of an in absentia order? The motion to reopen fee is $ However, not all motions to reopen require a fee. 91 A filing fee is not required if a motion to reopen is based exclusively on an application for relief that does not require a fee. 92 The ICPM states that a filing fee is required for a motion to reopen, unless the motion is based exclusively on a claim for asylum. 93 The ICPM further states that [f ]or purposes of determining filing fee requirements, the term asylum here includes withholding of removal ( restriction on removal ), withholding of deportation, and claims under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. 94 Since Central American families seeking asylum or related relief have likely already received a positive result of a credible or reasonable fear interview, there is no fee for the MTRR or MTR of an in absentia order. Even if respondents did not have an interview with an Asylum Officer, they do not have to pay a fee (unless respondents do not wish to seek asylum or related relief before the IJ). If there is a concern that the Immigration Court will erroneously reject the MTRR or MTR of an in absentia order without a fee receipt, the IJ can waive the fee if the respondent is unable to pay the fee and can show inability to pay. 95 Eligibility for a fee-waiver is demonstrated by submitting an executed affidavit or unsworn declaration made pursuant to 28 U.S.C. 1746, substantiating the inability to pay the fee. 96 However, if the request for a fee waiver is denied, the motion will not be deemed properly filed and the respondent may fall outside the 180-day deadline for an MTRR of an in absentia order if filing pursuant to exceptional circumstances. 97 Q: What happens after the IJ rules on the MTRR or MTR of an in absentia order? If an MTRR or MTR of an in absentia order is successful, then a new master calendar hearing will be scheduled for your client. If you did not file Form I-589 with the MTRR or MTR, you should be prepared to file the I-589 as soon as possible after the case is reopened and before the one-year filing deadline. 98 If an MTRR or MTR of an in absentia order is unsuccessful, the order of removal will remain in place and the respondent faces a risk of removal unless s/he appeals the decision to the BIA. An appeal to the BIA is taken 90 8 C.F.R (b)(2). The motion to reopen fee must be paid in advance to the Department of Homeland Security (the local CIS District office) in accordance with 8 CFR The fee receipt must accompany the motion when it is filed with the Immigration Court C.F.R (b)(2). 92 Id. 93 ICPM at 3.4(b). 94 Id C.F.R (d). 96 Id. 97 Id. 98 Michael C. McGoings, Chief Immigration Judge (Acting), Operating Policies and Procedures Memorandum 16-01: Filing Application for Asylum, Sept. 14, 2016, available at 25

26 by filing a Form EOIR-26: Notice of Appeal with the Board of Immigration Appeals within thirty days of the IJ s denial of the motion to reopen. Unlike the original motion, an appeal to the BIA requires a fee or a Form EOIR-26A: Request for Fee Waiver executed by both the client, and attorney, if any. If you are representing the client on appeal, you must also file a Form EOIR-27, Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals, even if you have already appeared before the Immigration Court. For more information about appellate practice, refer to the BIA Practice Manual. There is no automatic stay of removal on appeal, but the BIA can adjudicate a motion for a stay of removal in conjunction with any appeal of the denial of an MTRR or MTR of an in absentia order. 99 Do not assume that ICE will obtain notice of a pending request for a stay of removal or of an approved stay of removal. Instead, submit proof of the motion for a stay of removal to the ICE Office of Enforcement and Removal (ERO) with jurisdiction over the respondent. Also, to best protect the respondent, prepare and sign a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, early in the case because, should ICE take the respondent into custody, ICE will request this form as opposed to the Form EOIR-28, Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court. Not having a Form G-28 signed by your client may lead to ICE claiming inability to discuss your client s case by citing confidentiality reasons all while preparing for respondent s removal. Q: What happens if the Immigration Judge rescinds the removal order and/or reopens the case but later denies asylum and related relief? If an MTRR or MTR of an in absentia order is successful, but the respondent then loses the case on the merits in reopened proceedings, the IJ will enter a new order of removal, which can then be appealed to the BIA within 30 days. 100 Review the BIA Practice Manual to ensure proper and timely submission of the Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge C.F.R (b). 100 See Matter of Liadov, 23 I&N Dec. 990 (BIA 2006) (holding that although the Board may certify a case to itself under 8 CFR (c) if the 30-day deadline has expired, exceptional circumstances must be present present). Several U.S. courts of appeals have held that filing after the 30 days deadline is not fatal to a direct appeal. See, e.g., Zhong Guang Sun v. U.S. Dept. of Justice, 421 F.3d 105, 111 (2d Cir. 2005)(finding the BIA abused its discretion in denying a motion to reconsider because the untimely appeal merited consideration based on error of Airborne Express overnight delivery service); Liadov v. Mukasey, 518 F.3d 1003, 1009 (8th Cir. 2008)(holding that the Attorney General has discretion as to whether to require a mandatory time limit); Irigoyen Briones v. Holder, 644 F.3d 943, 949 (9th Cir. 2011)(finding discretion in time limit since it is in purview of the agency, not jurisdictional); Huerta v. Gonzalez, 443 F.3d 753, (10th Cir. 2006)(holding that the BIA has jurisdiction and authority to accept late filings because timeline is not jurisdictional).

27 IV. INTERVIEWING CLIENTS AND DRAFTING DECLARATIONS Building Client Rapport The central purpose of the interview with your client(s) is to gather detailed information for the declaration. To that end, it is essential to begin by building a rapport with them. Understand that the asylum-seeker may not be immediately trusting or comfortable with giving you detailed information about their life. Take the time to ease their mind by fully explaining your role as their advocate. Assure the client(s) that any information they provide will be confidential and will not be shared with anyone without their consent. Also assure them you will not file the MTRR or MTR you are working on without their sign-off, and that the MTRR or MTR that is filed will not be publicly available. Some strategies to help make the client(s) comfortable can include discussing a neutral topic before delving into your client s story and sharing a piece of your own private life or similarities from your own background. Make sure your client understands that she is in control of the meeting, and invite her to ask questions or to interrupt you whenever she would like. Beginning the Interview Begin by describing the purpose of your interview to your client(s). Explain that this declaration and motion are meant to convince the judge to rescind the in absentia removal order received and re-open immigration proceedings. Inform your client(s) that the declaration and motion will have to establish that their failure to appear was due to either lack of notice or other exceptional circumstances. Reassure them that the reason the IJ issued a removal order was due to failing to appear and not because the IJ did not believe they had an asylum claim. Indeed, the IJ did not review the merits of the case during the in absentia hearing. Explain the Questions You Will Ask You should also warn your client(s) that you may be asking difficult questions, but explain that their answers are important because this declaration will be the basis for the motion to re-open and reconsideration of their case. However, reassure your client that it is okay if they need to take a break from a certain category of questions if they are feeling upset, overwhelmed, or anxious. Additionally, communicate to your client that if you ask them for more details or follow-up information, it is not because you do not believe them but because you want to do your best to understand and effectively convey their story in the declaration. Explain that you will be asking for the information in chronological order, or the order in which it occurred and that you will continue to go over the timeline of events with them to ensure it is accurate. Finally, explain to your client(s) that you may be asking about things that do not seem important (or not 27

28 asking about things that do seem important) because you are tailoring your questions to the legal arguments that you intend to make in the motion. Specifically, you should inform your clients that this declaration will primarily focus on why they did not attend their hearing rather than the merits of their underlying asylum claim (although this declaration should include a very brief explanation of your client s underlying claim). Encourage them to share any additional information they think may be relevant, even if you do not ask the specific question. Questions To Ask Although you will eventually need to ask specific questions to gather detailed information for the affidavit or declaration, begin by asking the lead respondent (for a family unit of a mother and children, the lead respondent is the mother) more open-ended and general questions about why they missed their hearing. The affidavit or declaration should usually come from the lead respondent unless there are other issues to consider, such as competency issues. General Questions Asking more generalized questions at the beginning of your interview will not only help build up your client s comfort level and make them feel listened to, but it will also give you a better sense of what information the declaration should include. To avoid sounding accusatory or judgmental when asking open-ended questions about why they missed their hearing, it may be useful to list common reasons for missing hearings, including lack of notice or exigent family circumstances. Do not assume, however, that your clients will immediately identify every reason for missing their court date. Your clients may not realize which circumstances could be relevant to explaining their absence from court. Try to identify any additional issues that may have contributed to their missed court date by asking some general follow-up questions, including: Did you ever receive a written notice in the mail regarding your court date? If you did receive a notice in the mail, were you able to read it and understand it? Did you have someone else who could read it and/or translate it for you? Were you ever told about your court date in your primary language? Did you have any family or personal matters or physical impediments that prevented you from attending court? Many people are understandably confused by the differences between ICE and Immigration Court so it is worth explaining and asking follow up questions to be clear which you are discussing at any point. Document Collection You will also need to ask for copies of all of your clients immigration documents (in person, by , by fax, or even by taking pictures of documents and texting them). 28

29 Specific Background Questions Once you have a general idea of why your client(s) were not present for their hearing, you should move on to asking more specific questions. The final affidavit or declaration should be very detailed and thorough. Below are some useful background questions that you may ask, as well as questions that may be more specific to your clients failure to appear. Conditions of Detention When did you arrive in the United States? Where did you arrive? Did you arrive alone or with any children/family members? Did you get taken to the hielera or icebox? If so, for how long? Did you get taken to the perrera or dog cages? If so, for how long? Were you taken to a detention facility? If so, how long were you there for? Do you remember what was it called? Can you describe the circumstances of your detention? Where were you taken? How were you treated? Were you ever separated from your children or family while you were detained? For how long? How did this separation make you feel? Can you describe the conditions of your detainment? Did you and your family have enough food while you were detained? Did you or any of your family members experience any medical problems while you were detained? How did being detained affect you and your children? Have you noticed any changes in your children since their detainment? How long were you detained? While you were detained, did you have an interview with an asylum officer? 29

30 Did you pass the interview the first time? Do you have those documents? Bond Hearing and Release When were you released? What address did you give immigration for where you were going when you were released? Were you released on an ankle monitor? If not, did immigration ever put one on you after release? If you left detention with an ankle monitor, do you still have it on? If not, how long did you have it on for? Did you ever go to Immigration Court while you were detained (for your bond hearing or any other hearing)? Did the judge speak to you in your primary language? If not, was there anyone present to translate and help you understand your proceeding? Were you provided an interpreter? If so, was the interpreter present in person or over the phone? Was the interpreter clear, audible, and understandable? Did you have a bond hearing before an IJ? Were you released on bond? How much was your bond? Who was your sponsor? What is your relationship to your sponsor? Why did you choose this sponsor?» Were you ever incorrectly told that your sponsor had to be a U.S. citizen or legal permanent resident? From whom did you hear this information?» Did you intend to live with that sponsor upon being released from detention? Were you ever informed about any upcoming dates you needed to appear in court or for a check-in by anyone prior to your release? Were you told to report to immigration? Was it on a specific day? 30

31 Were you informed of a future court date? Were you given any documents upon your release? ICE Check-Ins Did any of those documents contain dates for upcoming court dates or ICE check-ins? Do you still have those documents? If so, can you please show them to me (in person, send by fax or even by taking a photograph and texting the image). Which immigration office(s) have you reported to? (Note: asylum-seeking families often have to report not only to ICE but also to private contractors such as BI (Behavioral Interventions), a company responsible for ankle monitors and other forms of supervised release. This can be confusing, and it may help to ask where the offices were, to determine whether they reported to an ICE office or a private company.) Is it close to where you are living now? How many times have you attended an ICE check-in? Can you describe the details of each of those check-ins? How long did they take? Who did you speak to and what did they say?» Did they speak your primary language?» Was there a translator available? Have you missed any appointments with immigration? Why? Did any ICE official ever mention or remind you of your upcoming court date? Insufficient Notice Did you provide immigration officials with an address where you would reside and could receive mail upon your release? What was that address? Is this where you lived? If not, where did you live instead and why? Did you ever move or change addresses? Where to? Why? 31

32 Were you ever informed about how to update your address and contact information with ICE or the Immigration Court? Did you ever receive a copy of the Immigration Court change of address form (Form EOIR-33)? Did you know you had to separately change your address with the court in addition to changing it with immigration? If you moved, was there someone you know who continued to check the mail at that address? How often did you (or others) check your mail? Has mail to this address been lost or sent somewhere else by accident? Have you had any other problems with mail to this address? Did you ever receive any mail relating to your case at that address? Could you read and understand those letters? Were those letters in your primary language? Was there anyone you knew who could read and translate the letters?» Who?» What is your relationship to them?» What is their level of proficiency in both languages?» Did this person translate the letter word-for-word, or did they only tell you what the letter was about generally? Did you have any trouble understanding the dates listed on the letters because of their month/day/ year format? Did you ever receive notice of meetings with immigration? How many notices did you receive? Have you received a notice asking you to report for your deportation? If so, what date did it say you needed to report? Did you ever receive a notice about a hearing in court? Did that Notice to Appear contain a hearing date or hearing location? How many times did you receive this notice? When was the last time you received notice from the Immigration Court? 32 Exceptional Circumstances

33 This set of questions will vary depending on the case, but here are some questions to keep in mind. Was there some personal or family matter that prevented you from going to court on the date of your hearing? Were you or any of your family members sick or in the hospital? Was there a death in your family? Did you have any serious physical or psychological impediments that prevented you from attending court? Have you ever been represented by an attorney before? If so, what happened? Removal Order When and how did you realize that you missed your court date? How did you learn you missed your court date if you did not know about the hearing? When and how did you learn a removal order had been issued against you? Did you take any action when you learned that you had missed your hearing and that a removal order had been issued? Did you reach out to an immigration lawyer?» What is the name of the lawyer you reached out to (even if s/he did not take your case?» Did that lawyer give you any advice? Did you continue to attend your ICE check-ins?» Why or why not? 33

34 V. MTRR / MTR AND CHANGE OF VENUE CHECKLIST 1. Determine whether it is in your clients best interest to file an MTRR or MTR. A respondent with an in absentia removal order may choose to file an MTRR or MTR, or opt not to file. See Overview of Procedure and FAQs. Questions to consider when advising your client include: Do the client(s) face imminent removal and need the MTRR or MTR to prevent deportation? What does the Immigration Court s file on the respondent reflect regarding notice? Is an MTRR likely to succeed on the grounds of either (1) a qualifying exceptional circumstance within 180 days of the entry of the order of removal, or (2) lack of sufficient notice of the hearing? If the case is successfully reopened, what are the clients chances of winning the underlying asylum case? (Considerations may include: whether the family will have legal representation, how strong the legal precedent is supporting their claim, what corroborating evidence is available, the reputation of the IJ, etc.). 2. Prepare the MTRR or MTR filing. Note: Some immigration courts may have specific additional requirements, such as original signatures or separate motions for the parent and the minor children. If you are not familiar with local immigration court practice, we recommend that you call the immigration court clerk before filing to check on any additional requirements. Cover Letter EOIR-28 Forms, Notice of Entry of Appearance as Attorney ( files/pages/attachments/2015/07/24/eoir28.pdf) Signed by attorney or BIA Fully Accredited Representative Must include EOIR # of attorney or BIA Fully Accredited Representative Submit separate forms for the parent and each minor child Ensure that no prior attorney has previously entered an appearance, which will cause the motion to be rejected. If a previous attorney entered an appearance, you will need to submit a 34

35 motion to substitute counsel. For an example, see PAIR Project, Sample Motion to Withdraw and Substitute Counsel, Cover page that includes the following notices: No Fee Required per 8 C.F.R (b)(1)-(2) and the ICPM at 3.4(b) ( The following motions require a filing fee: a motion to reopen (except a motion that is based exclusively on a claim for asylum )) as Motion is based on Asylum MTRR only: Automatic Stay of Removal If applicable, receipt of $110 motion to reopen fee paid to your local USCIS District Office per 8 C.F.R (a) (no InfoPass Appointment needed and they provide the receipt to include with the Immigration Court filing) Motion to Rescind and Reopen or Motion to Reopen in absentia order Signed by attorney Ensure you have changed all names to your clients names Ensure you have put in citations to the exhibits Ensure accuracy of the A#s Table of Contents of Exhibits Include page numbers in the table of contents and paginate your exhibits Exhibits to Motion to Rescind and Reopen and/or Motion to Reopen in absentia order, usually including: Declaration of Client Signed by client With certificate of translation signed by translator Credible or Reasonable Fear Interview Transcript(s) Any other important immigration documents, such as hearing notices Any unpublished BIA decisions that may be relevant 35

36 Supporting country conditions information I-589, Asylum Application (optional but recommended) Signed by client Signed by preparer Draft Order of the IJ Certificate of Service Signed by person who served on DHS 3. File the MTRR or MTR in Immigration Court. We recommend finding someone to hand-file your packet at the window of the Immigration Court if possible, to ensure that the motion is accepted and received on time. When you file an MTRR or MTR at the window, ensure to take a copy of the cover page, EOIR-28 and I-589 cover pages in order to ask the clerk to stamp these pages. 101 Motions may also be submitted by mail. Unfortunately, there is no electronic filing available in Immigration Court. Attorneys may not submit their EOIR-28 electronically for MTRRs or MTRs as eregistry cannot match the EOIR-28 to closed cases. The motion must be filed with the Immigration Court where the in absentia order was entered, even if the clients now live elsewhere. If you do not know the name of the IJ who entered the removal order, call the court to ask. 4. If necessary, also file Change of Address Forms and/or a Motion to Change Venue. If the clients have moved, submit the Immigration Court change of address form, EOIR-33 Signed by client or attorney Proof of service on form signed by person who served on DHS Contact ICE to notify the client s officer of the address change Submitting a Change of Address form to ICE does NOT constitute notifying the court of your client s change of address A stamped copy of an MTRR cover page may be helpful to fax or demonstrate to ICE to stop an imminent deportation. Even though an individual or family has 180 days to file an MTRR to reopen an in absentia removal order, ICE will often begin the

37 If the clients have moved and also is now in the jurisdiction of a different Immigration Court, submit a Motion to Change Venue, including: Cover Letter Motion to Change Venue Signed by attorney Copy of Form EOIR-33 Draft Order of the IJ Certificate of Service Signed by person who served on DHS If the client moves after sending the I-589 to USCIS, submit the USCIS change of address form, AR Serve the Motion(s) on the Department of Homeland Security. Send a full copy of all filings to the relevant DHS Office of Chief Counsel see gov/contact/legal for a list of addresses. Include an I-589 with the MTR. Anything submitted to the Immigration Court must be served on DHS Office of Chief Counsel. 6. Send the asylum application (if applicable) to USCIS to generate the biometrics appointment.102 Mail to: Include: USCIS Nebraska Service Center Defensive Asylum Application with Immigration Court P.O. Box Lincoln, NE A copy of the first three pages of the I-589 (only the first three pages containing basic process of deportation before the end of the 180 days. 102 Even if you include an I-589 with the MTRR or MTR filed at the window or by mail to the Immigration Court and ICE s Office of Chief Counsel, be sure to lodge the I-589 with USCIS in order to trigger the scheduling of an appointment for the purposes of fingerprinting respondent(s). Biometrics expire after 15 months, and biometrics must be current during the individual hearing. 37

38 biographic information are necessary; USCIS will follow up with a receipt notice and to schedule a biometrics appointment) A copy of the EOIR-28 forms A copy of the Pre-Filing instructions ( PreOrderInstr.pdf) 7. Save a copy of the filing(s) for your records and send a full copy to your clients. 8. Respond to the IJ s decision as necessary. The length of time it takes for an IJ to decide an MTRR or MTR varies widely. If the judge grants the motion, the client should receive a new master calendar hearing date. If the judge denies the motion, you may appeal the decision to the BIA. Within 30 days of the IJ s decision, you will need to file a notice of appeal (Form EOIR-26 be sure to request briefing), along with new attorney appearance forms (Form EOIR-27), and either the filing fee (check online for the most updated fee amount) or a fee waiver request (Form EOIR- 26a). You can also submit a motion for a stay of removal to the BIA if necessary. The BIA will then set a deadline for your appeal brief. You may submit a briefing extension request, and the first extension is granted virtually automatically, typically an extra 21 days. If you need assistance with your BIA appeal brief, please contact us at info@ asylumadvocacy.org and we may be able to provide additional materials. 38

39 APPENDIX A. TEMPLATE: SAMPLE LETTER TO INEFFECTIVE COUNSEL 39

40 Template A1: Sample Letter to Ineffective Counsel [LETTERHEAD] [DATE] [FORMER ATTORNEY S ADDRESS] RE: [CLIENT/A#] Dear [MR./MS.] [ATTORNEY]: My office has been retained to represent [CLIENT] in connection with a Motion to Reopen her removal proceedings. As described in detail in the attached affidavit and complaint to [LICENSING AUTHORITY], [CLIENT] contends that your prior representation of her in removal proceedings was deficient and amounted to ineffective assistance of counsel. Accordingly, our office intends to file a Motion to Reopen with the [NAME OF IMMIGRATION COURT OR BOARD OF IMMIGRATION APPEALS] on [FUTURE DATE]. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), provides that prior counsel must be informed of the allegations leveled against [HIM/HER] and be given an opportunity to respond. I have enclosed [CLIENT] s affidavit and bar complaint detailing the deficiencies in your prior representation. If you want your response to these allegations to be submitted together with [CLIENT] s Motion to Reopen, your response, if any, must be received by our office no later than [DAY BEFORE FILING OR OTHER REASONABLE DATE] at the above address. Sincerely, [SIGNATURE] [NEW COUNSEL] Enclosures: 1. Affidavit of [CLIENT] 2. Complaint to [LICENSING AUTHORITY] 40

41 APPENDIX B. TEMPLATES: SAMPLE MOTION TO RESCIND AND REOPEN FILING 41

42 Template B1: Cover Letter [FULL NAME] [CLIENT ADDRESS] [DATE] U.S. Department of Justice Executive Office for Immigration Review Immigration Court [IC ADDRESS] Re: [FULL NAME], A XXX-XXX-XXX [CHILD NAME], A XXX-XXX-XXX Motion to Rescind and Reopen In Absentia Removal Orders Dear Immigration Judge: Enclosed please find a Motion to Rescind and Reopen In Absentia Removal Orders dated [date], for the above-named individuals. Please do not hesitate to contact me by phone ([Phone Number]) or ([ ADDRESS]) with any questions. Thank you for your time and consideration. Sincerely, [ATTORNEY NAME] [ADDRESS] [PHONE] [FAX] [ ] EOIR # XXXXXXXX Cc: Office of Chief Counsel Enclosures: [LIST ENCLOSED DOCUMENTS] 42

43 Template B2: Cover Page [ATTORNEY NAME] [ADDRESS] [PHONE] [FAX] [ ] EOIR # XXXXXXXX NON-DETAINED UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT [IMMIGRATION COURT CITY, STATE] ) In the Matter of: ) ) [FULL NAME] ) File No. A XXX-XXX-XXX ) [CHILD NAME] ) File No. A XXX-XXX-XXX ) Respondents ) ) Post-Decision Motion MOTION TO RESCIND IN ABSENTIA REMOVAL ORDER AND REOPEN PROCEEDINGS NO FEE REQUIRED PER (b)(2) AS MOTION BASED ON ASYLUM AUTOMATIC STAY OF REMOVAL PER INA 240(b)(5)(C) [DATE] 43

44 Template B3: MTRRR UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT [IMMIGRATION COURT CITY, STATE] ) In the Matter of: ) ) [FULL NAME] ) File No. A XXX-XXX-XXX ) [CHILD NAME] ) File No. A XXX-XXX-XXX ) Respondents ) ) MOTION TO RESCIND IN ABSENTIA REMOVAL ORDER AND REOPEN PROCEEDINGS Respondents, [FULL NAME] and [CHILD NAME], respectfully request through this timely motion that this Court rescind its [DATE] in absentia order of removal and reopen their proceedings pursuant to INA 240(b)(5)(C)(ii), 8 C.F.R (b)(4)(ii), because [1) THIS FAMILY DID NOT RECEIVE NOTICE OF THEIR [HEARING DATE] HEARING. 2) THIS FAMILY WAS UNABLE TO ATTEND THEIR [HEARING DATE] HEARING DUE TO EXCEPTIONAL CIRCUMSTANCES.] Ex. A, [FULL NAME] Decl. at #. Instead, Ms. [NAME] received a notice for an immigration court hearing that listed [DATE] as her first court date. Because Ms. [NAME] s failure to appear was due to [1) LACK OF NOTICE 2) EXCEPTIONAL CIRCUMSTANCES 3) LACK OF NOTICE AND EXCEPTIONAL CIRCUMSTANCES], her removal from the United States and that of her minor [CHILD NAME], is automatically stayed until such a time as the Court renders a decision. INA 240(b)(5)(C). Statement of Facts and Procedural History As described in her attached declaration, Ms. [NAME] came to the United States with her 44

45 Template B3: MTRRR minor CHILD[REN] to escape persecution based on [CREDIBLE FEAR CLAIM]. [IF CLAIM SEEMS VERY STRONG, SLIGHT EXPANSION ON CLAIM ELEMENTS (DEATH THREATS, ETC.) COULD BE APPROPRIATE.] Ex. B, Credible Fear Determination. She was apprehended upon arrival in the United States and held at [DETENTION FACILITY] in [CITY, STATE] for [TIME PERIOD]. She was given a Credible Fear Interview, at which an asylum officer determined that she had a credible fear of returning to [COUNTRY OF ORIGIN]. See Ex. B. --- [Option 1] She then received a Notice to Appear. Ex. C. However, this Notice to Appear [DID NOT STATE A DATE AND TIME OF HER FIRST IMMIGRATION COURT HEARING OR WAS FILED IN THE [CITY] IMMIGRATION COURT AND INSTRUCTED HER TO APPEAR AT A HEARING TO BE HELD IN THE DETENTION CENTER VIA VIDEOCONFERENCE.] Id. Before her first master calendar hearing before the [CITY] Immigration Court, Ms. [NAME] was released. Id. #. [Option 2] Ms. [NAME] requested a bond hearing, collected and submitted documents in support of that request to the Immigration Court, and appeared at a video conference bond hearing before The Honorable [ JUDGE NAME] located at EOIR in [CITY, STATE]. Ex. A at #. On [DATE], Judge [ JUDGE NAME] granted Ms. [NAME] s request for release on bond, and transferred venue to the Immigration Court in [CITY CLIENT PLANNED TO RESIDE IN]. Id. #. The [IC CITY] Court scheduled her for a master calendar hearing on [DATE]. Id. #. --- Ms. [NAME] provided the Department of Homeland Security ( DHS ) with the address at which she and her child intended to reside: [ADDRESS]. Ex. A at #. After their release on [DATE], [FULL NAME] and [CHILD NAME] resided at this address for [LENGTH OF TIME]. Id. #. 45

46 Template B3: MTRRR Venue was then transferred to this Court either sua sponte or by DHS motion. --- [Option 1: wrong address, told ICE about change but not IC] Ms. [NAME] has been in regular contact with Immigration and Customs Enforcement (ICE). Ex. A at #. When Ms. [NAME] left detention, ICE officials told her she needed to go to her ICE check in on [DATE] in [CITY]. Id. #. Upon arriving in [CITY], Ms. [NAME] went to ICE s offices before she had her first check in, on or about [DATE]. Id. #. Ms. [NAME] then went to her ICE check-in on [DATE]. Id. #. On [DATE], Ms. [NAME] also notified ICE that she would be moving to [NEW CITY, STATE]. Id. #. She did not submit a Form EOIR-33, Change of Address, to the Immigration Court because she believed informing ICE of her new address was all that was required. Id. #. Ms. [NAME] was told she would receive something in the mail with information about her next check-in with ICE, so she checked the mail frequently, but did not receive any mail from either the immigration court or ICE while she lived in [NEW CITY]. Id. #. [DESCRIBE ANY SUBSEQUENT MOVES, IF APPLICABLE.] Nervous that she had not received a notice from ICE about an upcoming check-in, Ms. [NAME] went in person to ICE s offices in [NEW CITY] on [DATE]. [OR CALLED ICE OFFICE ON [DATE].] Id. #. An ICE officer told her that she also had to change her address with the immigration court. Id. #. This was the first time she realized she also needed to change my address with the immigration court, not just with ICE. Id. #. [DESCRIBE HOW CLIENT LEARNED OF ORDER OF REMOVAL (ICE, IC LETTER, VOLUNTEER, ETC.)] [Option 2: right address, but still didn t get notice for some reason] At the time of release, Ms. [NAME] was informed that she would need to report to ICE in [CITY, STATE] on [DATE]. Ex. A at #. On [DATE], Ms. [NAME] reported to ICE as she was 46

47 Template B3: MTRRR instructed to do upon release. Id. #. The ICE officer who interviewed Ms. [NAME] on [DATE] did not inform her that she had an Immigration Court hearing on [DATE] in [IC CITY] Immigration Court. Id. #. The [NAME] family never received a hearing notice at [ADDRESS] informing them they needed to appear at the [DATE] hearing. Id. #. The [NAME] family first learned of this hearing on [DATE], when [REASON]. Id. #. Ms. [NAME] was informed that the EOIR hotline reported that she had been ordered removed on [DATE]. Id. #. The volunteer let Ms. [NAME] know that she could file a Motion to Reopen, and she discussed the benefits of doing so with the volunteer. Id. #. [Option 3: Sort of got notice, but could not attend hearing due to exceptional circumstances (tried to change venue but could not do so in time.)] Ms. [NAME] and her CHILD[REN] ultimately had to leave [ADDRESS] because [REASON]. Ex. A at #. On [DATE], Ms. [NAME] moved to [ADDRESS, CITY, STATE]. Id. #. On [DATE], Ms. [NAME] mailed a change of address form to the Immigration Court in [CITY], and a copy to the DHS/ICE Office of Chief Counsel. Id. #. She sought pro se assistance from a non-profit to file a motion to change venue to the Immigration Court in [NEW STATE]. Id. #. The Immigration Court denied that motion because they did not attach sufficient evidence of Ms. [NAME] s residence in [NEW STATE]. [ADD ANY OTHER INFORMATION ABOUT CLIENT S ATTEMPTS TO CHANGE VENUE, INCLUDING SUBSEQUENT MOTIONS TO CHANGE VENUE, CALLS TO THE IC OR ICE, ETC.] Despite her efforts, on [DATE], the Court ordered Ms. [NAME] removed in absentia. [Option 4: Got notice, but could not attend hearing due to other exceptional circumstances.] [STATE SUMMARY OF RELEVANT FACTS, HIGHLIGHTING ANY AND ALL CHALLENGES OR OBSTACLES FACED BY CLIENT. SUPPORT WITH EXHIBITS WHEN POSSIBLE.] 47

48 Template B3: MTRRR [Option 5: No notice because IC did not mail notice to foreign address. This may be fact specific, so modify the below as needed.] On [DATE], a border patrol agent served a Notice to Appear on Ms. [NAME]. The NTA charged her with being inadmissible to the United States for being present without admission or parole under INA 212(a)(6)(A)(i). Notably, the NTA indicates that Ms. [NAME] would be provided a copy of the Immigration Court change of address form, Form EOIR-33. Ex. C. No such form was provided to Ms. [NAME]. Ex. A at #. The NTA she was issued did not contain a hearing date or a hearing location. Ex. C. Ms. [NAME] anticipated getting a notice of the hearing at the address she provided to immigration officials. Ex. A at #. On [DATE], CBP filed two documents with the Immigration Court: the Notice to Appear (Ex. A) and the Form I-213 (Ex. X). Although the Form I-213 contains an address at which Ms. [NAME] could be contacted, the Immigration Court did not register that address. Likewise, the CBP failed to list the [COUNTRY OF ORIGIN] address on the Notice to Appear. On [DATE], the Immigration Judge held a hearing and ordered Ms. [NAME] removed in absentia. The Immigration Judge did not provide any notice of the hearing in advance. According to the in absentia order, [QUOTE FROM ORDER IF POSSIBLE] See Ex. X, Order of Immigration Judge. The in absentia removal order was never served on Ms. [NAME]. Ex. A at #. [Option 6: No notice because of ineffective counsel.] [SUMMARIZE HISTORY OF CONTACT WITH COUNSEL, USING DATES WHEN POSSIBLE, SUPPORTING WITH DOCUMENTS WHEN POSSIBLE.] Legal Argument I. [Full name] and [child name] have demonstrated that their failure to appear was due to lack of notice. 48

49 Template B3: MTRRR An order of removal in absentia may be rescinded at any time upon a showing that the respondent did not receive notice of the hearing at which they were ordered removed due to failure to appear. INA 240(b)(5)(C)(ii). This court must consider all relevant evidence submitted, including the respondent s own sworn declaration, in determining whether Ms. [NAME] and her CHILD[REN] have demonstrated they did not receive notice. Matter of M-R-A-, 24 I. & N. Dec. 665, (BIA 2008). A. [FULL NAME] and [CHILD NAME] complied with INA 239(a)(1)(F). INA 239(a)(1)(F) requires that a respondent provide the Attorney General with their address and inform the Attorney General of any change in address. It does not require that any specific form be submitted nor that the respondent notify the proper immigration court. Ms. [NAME] duly informed DHS of her address as instructed prior to her release on bond. Ex. A at #. Ms. [NAME] diligently checked her mail. Id. #. [If client filed an updated address with DHS, but not with the immigration court, use the following, modifying as needed. If not, delete the following paragraph.] At neither her release nor her [DATE] check-in was Ms. [NAME] informed she needed to also update her address with the Immigration Court, nor was she provided a copy of form EOIR-33 with which to do so. Ex. A at #. Furthermore, the NTA was in English, and Ms. [NAME] relied on the ICE officer s explanation of the form in Spanish. Id. #. Because the [NAME] family was never put on notice of the consequences for failing to provide the Immigration Court with their address, and never received notice of their hearing, an in absentia removal order is inappropriate. See Matter of G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001) (finding that an in absentia removal order cannot be entered where respondent has not received NTA). Moreover, Ms. [NAME] could reasonably assume that DHS would update her address with the immigration court, an assumption bolstered by the fact that venue was transferred in this case without a motion by the respondents. 49

50 Template B3: MTRRR In light of these facts, the address information Ms. [NAME] provided to DHS satisfies the [NAME] family s obligation under INA 239(a)(1)(F). [If client did not receive notice because of ineffective counsel, make sure that you add in the statement of facts when she retained the counsel. Use section A, modifying as needed. Use the below section B, modifying as needed. Change the second section B to section C, again modifying as needed.] B. Prior counsel was ineffective in failing to notify [NAME] of her hearing date. The Immigration and Nationality Act provides that an alien may file one motion to reopen proceedings, and that the motion shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material. INA 240(c)(7) (A)-(B). The Board has held that any right a respondent in deportation proceedings may have to counsel is grounded in the Fifth Amendment guarantee of due process. Matter of Lozada, 19 I. & N. Dec. 637, 638 (BIA 1988) (citing, inter alia, Magallanes-Damian v. INS, 783 F.2d 931 (9th Cir. 1986)). In Lozada, the Board held that ineffective assistance of counsel is a denial of due process only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case. Id. The Board in Lozada set forth the circumstances under which an in absentia removal order may be rescinded and proceedings reopened based on ineffective assistance of counsel, viz., that the motion be supported by an affidavit of the aggrieved respondent (see Ex. A), that prior counsel be given an opportunity to respond (see Certificate of Service), and that the motion reflect whether a complaint has been filed with the appropriate disciplinary authorities (SEE EX. X, DISCIPLINARY COMPLAINT). The legal standard in deciding ineffective assistance of counsel claims in the immigration context is whether counsel s performance may have affected the outcome of the proceedings. Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004) (reversing Board s denial of motion to reopen for ineffective assistance where the Board had erroneously held that respondents must show that the outcome of the case would have been different and not simply affected ). The Board has also held 50

51 Template B3: MTRRR that an order of deportation issued following a hearing conducted in absentia may be rescinded where the alien establishes that her failure to appear was the result of ineffective assistance of counsel, which the Board held amounted to exceptional circumstances within the meaning of section 242(B)(f )(2) of the Act. In Re Grijalva-Barrera, 21 I. & N. Dec. 472 (BIA 1996). Here, there can be no doubt that prior counsel s failure to communicate with Ms. [NAME] about her [DATE] hearing prejudiced her by directly causing her failure to appear. Ms. [NAME] submits that, because she would not have failed to appear for the hearing had prior counsel communicated the date and time of the hearing to her, or at the very least communicated that [S/HE] was no longer representing her, the outcome of the proceeding was thus affected by counsel s failure, which constituted ineffective assistance, and therefore exceptional circumstances under the Board s holding in Grijalva-Barrera. --- B. [FULL NAME] and [CHILD NAME] would have attended the hearing had they been notified. Ms. [NAME] s actions in [ATTENDING ICE CHECK-INS, GOING TO ICE CHECK- INS WHEN SHE WAS CONCERNED ABOUT NOT RECEIVING MAIL FROM ICE AND CONSULTING AN ATTORNEY TO HELP HER FILE A MOTION TO CHANGE VENUE] demonstrate that she would have attended her [DATE] Immigration Court hearing had she been informed of the hearing prior to it taking place. Ex. A at #. In Matter of M-R-A-, the Board of Immigration Appeals ( Board ) held that the respondent was entitled to have his proceedings reopened after an entry of an in absentia removal order where he submitted affidavits stating that he did not receive the notice, had filed an application for affirmative relief, had appeared at an earlier hearing, and exercised due diligence in promptly requesting reopening of proceedings. 24 I. & N. Dec. at Like the respondent in Matter of M-R-A-, Ms. [NAME] and her CHILD[REN] seek relief in the form of asylum, have a positive credible fear determination, complied with INA 239(a)(1)(F) and are making a prompt request to reopen proceedings. Moreover, this Court will likely agree that Respondent has been 51

52 Template B3: MTRRR much more diligent than many in [CONSTANTLY CHECKING HER MAIL, VISITING ICE OFFICES, AND TRYING TO FIND AN ATTORNEY TO HELP HER WITH HER CASE. ANY OTHER SHOW OF DILIGENCE WOULD BE USEFUL HERE.] [If the client did not receive notice because she provided a foreign address, delete everything under section A and B, and use the following template.] The Immigration Judge was required to have provided Ms. [NAME] notice of the hearing and the Immigration Judge should not have proceeded in absentia because s/he did not provide notice. Ms. [NAME] was entitled to receive notice of the hearing because she had provided a statutorily compliant address to receive notices about the hearing. The plain language of the statute provided Ms. [NAME] with a right to have a written notice of her removal hearing because notice is always required under INA 240(b)(5)(A) unless the exception under INA 240(b)(5)(B) applies. Congress created a single exception to the statutory notice requirement. If a noncitizen does not provide an address compliant with 239(a)(1)(F), then no written notice of the removal hearing is required. See INA 239(a)(2)(B), 240(b)(5)(B). Section 239(a)(1)(F) sets forth the address reporting obligations of a noncitizen. The address must be one at which the noncitizen may be contacted respecting removal proceedings. The statute is aimed at protecting a noncitizen s right to notice by authorizing the use of an address of the noncitizen s choice. It does not limit the address to the noncitizen s physical, residential address. There is no text that limits the address to a U.S. address. The only limitation is that the noncitizen must be able to be contacted through that address. In fact, the statute plainly provides that a foreign address can be used. Under 240(b)(5) (E), in absentia proceedings may be held against noncitizens awaiting a hearing who are physically outside the United States. See also Matter of Sanchez-Avila, 21 I. & N. Dec. 444 (BIA 1996) (describing pre- 1996, historical practice of respondents being physically outside the US for exclusion hearings and use of foreign address). The regulations and government forms echo the may be contacted language of the statute. The regulations refer to the address as the address where the noncitizen can be contacted. See 8 52

53 Template B3: MTRRR C.F.R (d)(1). Nothing in the regulations indicates that a U.S. address is required. If a foreign address is provided, then the Immigration Judge must give written notice of the time and place of the hearing. Ms. [NAME] was entitled to notice of the removal hearing because she provided a statutorily compliant address. Ms. [NAME] provided a [COUNTRY OF ORIGIN] address to receive notifications. Her address satisfies all the requirements of INA 239(a)(1)(F). It was a written notice of an address at which she may be contacted respecting the removal proceedings. Once a compliant address is given, the Immigration Judge must provide written notice of the time and place of the removal hearing. It is a mandatory obligation that the Immigration Judge was not free to disregard. Rather, the Immigration Judge is required to send notification of the hearing to that address. The DHS and former INS have a long history of providing notices to foreign addresses. See Matter of Sanchez-Avila, 21 I. & N. Dec. at 445 (mailing notice of hearing to Mexican address). If the court has an address at which the Respondent may be contacted, then the court is required to use it. Alternatively, if a U.S. address was required, the failure to provide notice of that requirement constitutes a separate, alternative ground for reopening the proceedings. Ms. [NAME] was entitled to notice of that requirement. Ms. [NAME] cannot be held to the notification obligations until the government gives her notice of those obligations by serving her with a Notice to Appear. Matter of G-Y-R-, 23 I. & N. Dec. 181, (BIA 2001); see also Velasquez-Escovar v. Holder, 768 F.3d 1000, 1006 (9th Cir. 2014) (determining that even aliens who have been served an NTA cannot be held to the address obligation in (d)(1) because the NTA does not mention it. ). Therefore, unless a NTA directly notifies an alien of her obligation to provide an U.S. address, the alien is not obliged to do so. Here, Ms. [NAME] was not provided with any notice that she was required to provide the Immigration Court with a U.S. address. Instead, Ms. [NAME] was required to provide her full mailing 53

54 Template B3: MTRRR address which is an address at which she may be reached. There is no language in the notices that would indicate that a U.S. address was required. Therefore, Ms. [NAME] could not be in default of the address reporting obligations because the statutorily required notifications were not properly provided. II. [FULL NAME] presents exceptional circumstances for missing her master calendar hearing that warrant rescission of the in absentia removal order and reopening of her case. An alien ordered removed in absentia may rescind the order upon a motion to reopen filed within 180 days after the date of the order of removal or deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances; or upon a motion to reopen filed at any time if the alien demonstrates: (1) that he or she did not receive notice in accordance with INA 239(a)(1) or (2) (removal proceedings), INA 242B(a)(2) (deportation proceedings), or; (2) the alien demonstrates that he or she was in Federal or State custody and the failure to appear was through no fault of the alien. INA 240(b)(5)(C). THE TERM EXCEPTIONAL CIRCUMSTANCES IS DEFINED AS CIRCUMSTANCES SUCH AS BATTERY OR EXTREME CRUELTY TO THE ALIEN OR ANY CHILD OR PARENT OF THE ALIEN, SERIOUS ILLNESS OF THE ALIEN OR SERIOUS ILLNESS OR DEATH OF THE SPOUSE, CHILD, OR PARENT OF THE ALIEN, BUT NOT INCLUDING LESS COMPELLING CIRCUMSTANCES [EVEN IF] BEYOND THE CONTROL OF THE ALIEN. INA 240(E)(L). [[YOU MAY WANT TO DELETE THE ABOVE IF THE EXCEPTIONAL CIRCUMSTANCES DO NOT SEEM TO FIT IN THAT CATEGORY.]] The applicable standard for determining exceptional circumstances is consideration of the totality of the circumstances. See Matter of W-F-, 21 I. & N. Dec. 503, 509 (BIA 1996). Ms. [NAME] s failure to appear at the [DATE] master calendar hearing was due to exceptional circumstances. As such, she moves this Court to rescind the in absentia order issued on that day, and to reopen these removal proceedings. [Option 1: If client did not attend hearing due to obvious exceptional circumstances, such as illness or death in the family.] 54

55 Template B3: MTRRR [ JUST EXPLAIN THE CIRCUMSTANCES, REFERRING TO THE DECLARATION AND SUPPORTING DOCUMENTS AS NECESSARY.] [Option 2: If there was no notice due to clerical error, client did not receive mail even though client provided correct address, client did not receive mail because changed address with ICE and not IC, etc., the following is the basic template.] Assuming arguendo that Ms. [NAME] did receive notice, which she does not concede, there were exceptional circumstances that prevented her from attending her [DATE] hearing. In an unpublished decision in the matter of Aminadad Natanael Mendez-Perez, No. A (BIA Oct. 30, 2013) (see Ex. D), the Board found that an alleged clerical error by the immigration court advising respondent to appear a day after his hearing constituted exceptional circumstances. Similarly, unawareness of a new hearing date was held to constitute exceptional circumstances in another unpublished decision in the matter of Marie N. Peli, No. A (BIA May 31, 2013) (see Ex. E). Ms. [NAME] provided a correct address to ICE while she and her CHILD[REN] were detained at [DETENTION FACILITY] in [CITY, STATE]. Since her release on bond, she has diligently checked in with ICE and made sure to change her address with ICE. Given that she received a Notice of Hearing on or around [DATE 1] for a hearing on [DATE 2], it seems that there was likely a clerical error, either in the Notice of Hearing or the issuing of the in absentia removal order. Therefore, this case is analogous to Aminadad Natanael Mendez-Perez, No. A (BIA Oct. 30, 2013) (Ex. D) and Marie N. Peli, No. A (BIA May 31, 2013) (Ex. E) as Ms. [NAME] seems to have experienced an Immigration Court clerical error in addition to a potential U.S. Post Office error leading her to be unaware of her hearing date, causing her to miss it. The Board has also held that there is a weaker presumption of delivery where notice is sent by regular mail. Matter of M-R-A-, 24 I. & N. Dec. at 673 (BIA 2008). This holding indicates that the Board has specifically contemplated that problems with the mail can and do occur. Ms. [NAME] s case should therefore be reopened due to the exceptional circumstances that led to her lack of prior notice of her hearing. 55

56 Template B3: MTRRR The Ninth Circuit Court of Appeals, in whose jurisdiction this case arises, has held that it is incumbent upon the Court to look to the particularized facts presented in each case in determining whether the petitioner has established exceptional circumstances. Singh v. INS, 295 F.3d 1037 (9th Cir. 2002) (quoting Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000)). In Singh, the Court found that the facts that the petitioner had appeared at several hearings in the past, had requested a change of venue when he believed he was going to move, and appeared eligible to apply for discretionary relief to mitigate in favor of reopening. Id. Similarly, the First Circuit Court of Appeals has held that an applicant s unintentional failure to appear can constitute an exceptional circumstance which warrants rescission and reopening. In Kaweesa v. Gonzales, 450 F.3d 62 (1st Cir. 2006), the Court held that an asylum applicant who had mistakenly believed her hearing was scheduled four days after the actual date had established exceptional circumstances where she had diligently pursued her application up until that point, and promptly sought legal redress after she discovered her error. The Kaweesa Court found that it did not appear that Kaweesa s failure to appear was deliberate or due to a desire to delay proceedings. Id. at 70. For that reason, and because the harm to her in losing the opportunity to pursue her asylum claim paled in comparison to the inconvenience to the government in reopening it, the Court reversed the denial of the motion to reopen, and remanded for a hearing on the merits of her claims for relief from removal. Id. at The Kaweesa Court emphasized that, in deciding the validity of a claim of exceptional circumstances, the totality of the circumstances must be considered. Id. at 68 (quoting Matter of B-A-S-, 22 I. & N. Dec. 57, (BIA 1998)). Specifically, it posited that relevant factors would include: the existence of supporting documents; the non-citizen s efforts in contacting the Court; her promptness in filing a motion to reopen; the strength of her underlying claim; the harm she would suffer if the motion were denied; and the inconvenience the government would suffer if the motion were granted. Id. at Ms. [NAME] s case is precisely analogous to Singh and Kaweesa; all of the factors which the First and Ninth Circuits identified in those cases mitigate in favor of reopening in Ms. [NAME] s removal proceedings: She has asserted her fear of return to [COUNTRY OF ORIGIN] and her desire to apply 56

57 Template B3: MTRRR for asylum repeatedly and consistently since her apprehension at the U.S./Mexico border approximately [NUMBER] months ago. She has been deemed by an [IMMIGRATION JUDGE OR ASYLUM OFFICER] to have a credible fear of persecution on account of a protected ground. And since her release from detention, she has pursued her case diligently, and has done everything possible to comply with this country s rules and procedures. [[FOR EXAMPLE: SHE FILED A CHANGE OF ADDRESS FORM WITH THE COURT WHEN SHE MOVED FROM [LOCATION 1] TO [LOCATION 2], AND SERVED A COPY ON THE OFFICE OF CHIEF COUNSEL. SHE RETAINED PRIVATE COUNSEL TO HELP FILE A PRO SE MOTION TO TRANSFER VENUE TO [LOCATION 2] AND WHEN THAT MOTION WAS DENIED, SHE WENT BACK TO THE ATTORNEY FOR ASSISTANCE WITH A SECOND MOTION. SHE FOLLOWED UP ON THAT SECOND MOTION DIRECTLY WITH THE COURT, LEAVING NUMEROUS MESSAGES AND SPEAKING WITH COURT STAFF DURING THE FIVE DAYS PRIOR TO THE [DATE] HEARING. CALLS WERE ALL SHE COULD REASONABLY DO IN THE CIRCUMSTANCES AS SHE LACKED FINANCIAL MEANS TO PURCHASE AIRPLANE TICKETS FOR HERSELF AND HER SON TO FLY THE 3,000 MILES FROM [LOCATION 2] TO [LOCATION 1] TO ATTEND THE HEARING.]] The inconvenience to the Court and DHS in reopening proceedings and allowing her to pursue her applications for relief pales in comparison to the equitable factors at play. III. In the alternative, the Court should reopen these proceedings sua sponte. Even if this Court is not persuaded that this matter should be reopened due to the lack of actual notice resulting from exceptional circumstances, the Court should reopen these proceedings sua sponte. In addition to reopening a case pursuant to the INA, an Immigration Judge may at any time reopen a proceeding in which he or she has made a decision. 8 C.F.R (b)(1). The Board has held that this sua sponte authority is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, when enforcing them might result in hardship. Matter of J- J-, 21 I. & N. 57

58 Template B3: MTRRR Dec. 976, 984 (BIA 1997). Sua sponte authority is an extraordinary remedy reserved for truly exceptional situations. Matter of G- D-, 22 I. & N. Dec. 1132, 1134 (BIA 1999). The Executive Office for Immigration Review (EOIR) has broad equitable authority to take any actions it deems appropriate to serve the interests of justice, including the authority of to reopen proceedings sua sponte in appropriate circumstances. Indeed, the regulations give the Board clear authority to reopen and remand cases without regard to other regulatory provisions. Matter of Yewondwosen, 21 I. & N. Dec. 1025, 1027 (BIA 1997); see also 8 C.F.R (b)(1), (a) (providing authority for sua sponte reopening to immigration judges and the Board); 8 C.F.R (d) (granting the Board authority to return any case to an IJ for further action as may be appropriate, without entering a final decision on the merits of the case. ). And the Board has recognized that, It would therefore appear that this Board has the ability to reopen or remand proceedings when appropriate, such as for good cause, fairness, or reasons of administrative economy, and that technical deficiencies alone would not preclude such action. Matter of Yewondwosen, 21 I. & N. Dec. 1025, 1027 (BIA 1997). Ms. [NAME] s case is precisely the type of case in which sua sponte reopening is appropriate. She has a strong claim to asylum, and has diligently pursued it [FOR TIME PERIOD]. [[SHE HAS APPEARED AT BOND AND CREDIBLE FEAR HEARINGS, AND DILIGENTLY PURSUED A MOTION TO TRANSFER VENUE WHEN SHE MOVED. SHE DID NOT RECEIVE ADEQUATE NOTICE OF HER HEARING, BUT IF SHE HAD, SHE WOULD HAVE CONTINUED TO PURSUE HER CLAIM. SHE SUFFERED FROM EXCEPTIONAL CIRCUMSTANCES WHICH PREVENTED HER FROM ATTENDING HER HEARING EVEN THOUGH SHE HAD CLEARLY INTENDED TO DO SO.]] Before [DATE OF COURT HEARING], she had never failed to comply with a deadline or instruction by the Court. Reopening these proceedings will clearly further the interests of justice. 58

59 Template B3: MTRRR Ample published evidence supports that fact that individuals deported to Northern Triangle countries are at very real risk of death. Ex. F, U.S. Government Deporting Central American Migrants to Their Deaths, The Guardian, Oct. 12, Ms. [NAME] and her CHILD[REN] have received credible death threats in [COUNTRY OF ORIGIN] as determined by an Asylum Officer (see Ex. B), and respectfully ask this Court to consider the continuing danger to them in [COUNTRY OF ORIGIN] in concluding that they should be given a chance to litigate their asylum claim on its merits. Conclusion and prayer for relief. Ms. [NAME] s case should be reopened to allow her and her CHILD[REN] to pursue asylum claims. They have a colorable claim for asylum as evidenced by their positive credible fear determination. See Ex. B. They had every reason to attend her immigration court hearings in order to gain asylum and legal immigration status in the United States. Further, as soon as Ms. [NAME] learned of the in absentia removal orders entered against her and her children, she began working to reopen her case. Ex. A at #. For all of these reasons, [FULL NAME] and her CHILD[REN] have demonstrated that they did not receive adequate notice of their [DATE] hearing. Due process requires that a respondent be provided with adequate notice of proceedings and an opportunity to be heard. Matter of G-Y-R, 23 I. & N. Dec. at 186 (BIA 2001) (citing Landon v. Plasencia, 459 U.S. 21, (1982); Bridges v. Wixon, 326 U.S. 135, 154 (1945); Yamataya v. Fisher, 189 U.S. 86, 101 (1903)). Because Ms. [NAME] did not receive timely, adequate, or accurate notice of her immigration court proceedings, due process requires that the in absentia removal orders against her and her CHILD[REN] be rescinded and their proceedings be reopened. 59

60 Template B3: MTRRR Dated: [DATE] Respectfully submitted, [ATTORNEY NAME] [ADDRESS] [PHONE] [FAX] [ ] EOIR # XXXXXXXX Table of Exhibits Counsel for Respondents [LIST ALL EXHIBITS THAT YOU HAVE USED AND ENSURE THAT EXHIBIT CITES IN MOTION ARE UPDATED] Exhibit Description Page 60

61 Template B4: Sample Exhibits A Declaration of [FULL NAME] #-# B Credible Fear Interview or Reasonable Fear Interview (if no concerns or inconsistencies) #-# C Notice to Appear #-# D Aminadad Natanael Mendez-Perez, A (BIA Oct. 30, 2013) #-# (UNPUBLISHED DECISION INCLUDED BELOW) E Marie N. Peli, A (BIA May 31, 2013) (UNPUBLISHED #-# DECISION INCLUDED BELOW) F U.S. Government Deporting Central American Migrants to Their Deaths, #-# The Guardian, Oct. 12, 2015, G (Potentially) I-589, Application for Asylum and Withholding of Removal #-# 61

62 Template B4: Sample Exhibits U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals Office of the Clerk 5107 Leesburg Pike, Suite 2000 Falls Church, Virginia Casta, Lymari, Esq. The Casta Law Office 372 East 204th Street, Ste. A Bronx, NY Name: MENDEZ PEREZ, AMINADAD N... A OHS/ICE Office of Chief Counsel - NYC 26 Federal Plaza, 11th Floor New York, NY Date of this notice: 10/30/2013 Enclosed is a copy of the Board's decision and order in the above-referenced case. Enclosure Panel Members: Hoffman, Sharon Manuel, Elise Guendelsberger, John Sincerely, Dowu... c l1/v V Donna Carr Chief Clerk lulseges Userteam: Docket Immigrant & Refugee Appellate Center For more unpublished BIA decisions, visit Cite as: Aminadad Natanael Mendez-Perez, A (BIA Oct. 30, 2013) 62

63 Template B4: Sample Exhibits U.S. Department of Justice Executive Office for Immigration Review Decision of the Board of Immigration Appeals Falls Church, Virginia File: A New York, NY Date: IOCT In re: AMINADAD NATANAEL ly.ibndez-perez IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Lymari Casta, Esquire APPLICATION: Reopening The respondent, a native and citizen of the Dominican Republic, appeals the Immigration Judge's decision dated May 29, 2012, denying the respondent's motion to reopen an order of removal entered in absentia on February 14, The Board defers to the factual findings of an Immigration Judge, unless they are clearly erroneous, but it retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions of law and the application of a particular standard of law to those facts. 8 C.F.R l(d)(3). Under the totality of the circumstances, we are persuaded by the respondent's argument that he established exceptional circumstances" for his failure to appear, and that the in absentia order should therefore be rescinded. See section 240(b )(S)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(S)(C)(i); Matter of W-F-, 21 I&N Dec. 503, 509 (BIA 1996). Accordingly, the following order will be entered. ORDER: The appeal is sustained, the in absentia order of removal is rescinded, these proceedings are reopened, and the record is remanded for further proceedings consistent with the foregoing opinion. Immigrant & Refugee Appellate Center Cite as: Aminadad Natanael Mendez-Perez, A (BIA Oct. 30, 2013) 63

64 Template B4: Sample Exhibits UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT NEW YORK, NEW YORK File No. A# In the Matter of: ) ) MENDEZ-Perez, Aminadad Natanael ) Respondent ) CHARGE: APPLICATION: INA 237(a)(l)(B) Motion to Reopen ON BEHALF OF THE RESPONDENT: H. Benjamin Perez, Esq. 350 Broadway, Suite 400 New York, NY I. Procedural ) IN REMOVAL PROCEEDINGS ON BEHALF OF THE SERVICE: Renata Parras Assistant Chief Counsel, New York OCC New York, NY DECISION OF THE IMMIGRATION JUDGE Respondent, Aminadad MENDEZ, is a native and citizen of Dominican Republic who was admitted to the United States at New York, NY as nonimmigrant B-2 on August 27, 2007 as a nonimmigrant visitor with authorization to remain in the United states for a temporary period not to exceed 6 months. The Respondent remained in the United States beyond the allowable amount of time without authorization from the Department of Homeland Security (DHS). April 4, 2011, DHS issued and personally served a Notice to Appear (NTA) (Form l-862), alleging that the respondent entered the United States ("US") on or about August 27, 2007, as a nonimmigrant B-2 with authorization to remain in the US for a temporary period not to exceed six months. The NTA charges Respondent with removability pursuant to Section 237(a)(l)(B) of the Immigration and Nationality Act (the "Act") in that after his admission as a nonimmigrant B-1, the alien remained in the United States beyond November 15, 2008 without authorization. On Immigrant & Refugee Appellate Center 64

65 Template B4: Sample Exhibits On November 15, 2011, Respondent appeared with his attorney and requested an adjournment in order for the Respondent criminal matter to be resolved as well as to give the Respondent an opportunity to address what forms of relief he will be seeking with the Court. The Court adjourned the matter to February 14, 2012 at 9:30 am. The original notice clearly states the correct date and time of the hearing. Both parties were personally served with a copy of the notice. Further, the Court also announced orally the accurate date of the incoming hearing. On November 15, 2011, the Respondent was provided written notice of his incoming hearing scheduled for February 14, 2012 at 9:30am. On February 14, 2012, the Respondent failed to appear at his scheduled hearing and the Court conducted an in absentia hearing and ordered Respondent removed to the Dominican republic pursuant to the charge contained in the NT A. On March 29, 2012, Respondent, through his counsel, filed a motion to reopen. Respondent requests that proceedings be reopened because he claims that he missed his scheduled hearing due to clerical mistake on the Court's part. More specifically, the Respondent alleges that he received a hearing notice from the Court, which indicated that he was scheduled for a hearing on February 15, On April 5, 2012, DHS filed a reply in opposition to the respondent's motion to reopen. IL Standard & An order entered in absentia in removal proceedings may only be rescinded upon a motion to reopen filed: (1) within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances beyond their control; or (2) at any time if the alien demonstrates that they did not receive notice or that they were in federal or state custody and their failure to appear was through no fault of their own. See 8 CFR 3.23(b)(4)(iii)(A). The Court finds that the Respondent received proper notice. The record of proceedings reflects that the proper notice of hearing was served on the Respondent on November 15, 2011 when he attended to his last master calendar hearing with his counsel and he was aware of his February 14, 2012 master calendar hearing date. The original notice of the hearing clearly states the date of February 14, The original notice of the hearing fails to contain the allege correction or amendment. The Court reviewed its original hearing notice in the record of proceedings and concluded that this alteration is not in the original document. Although it is unclear who made this change to the Notice of the hearing, based on the totality of the evidence, it appears that this Court was not responsible for this alteration. Based on my review of the evidence provided in the motion to reopen, it also appears that the number "511 has been handwritten over the number that originally was below. Based on the totality of the evidence, the Respondent was properly served with a notice of the hearing as he was present in Court and received oral notice in person. Therefore, the Respondent has not sufficiently demonstrated that the notice was defective or improper or that an exceptional circumstances prevented him from Immigrant & Refugee Appellate Center

66 . 0 Template B4: Sample Exhibits appearing in Court on February 14, ORDER IT IS HEREBY ORDERED that Respondents motion to reopen proceedings be DENIED. Date S-2 \- J 2-1JilS 00CU1\1ENT WAS SERVED: IN ALIEN/ ATIY TA'S VIA US MAIL a VIA f!!eral. fild're$ llj llj DA'JE '1-i Cllt Immigrant & Refugee Appellate Center

67 Template B4: Sample Exhibits U.S. Department of Justice Executive Office for Immigration Review Board < llmmigration Appeals Office of the Clerk 5107 l.eesb11rg Pike, Suite 2000 Falls Cl111rch, Virginia 220./ I Enow, Kell, Esq Enow & Associates 2470 Windy Hill Road, #138 Marietta, GA Name: PELI, MARIEN OHS/ICE Office of Chief Counsel -ATL 180 Spring Street, Suite 332 Atlanta, GA A Date of this notice: 5/31/2013 Enclosed is a copy of the Board's decision and order in the above-referenced case. Enclosure Panel Members: Guendelsberger, John Hoffman, Sharon Manuel, Elise Sincerely, DonnL c t1/v\.) Donna Carr Chief Clerk schuckec Userteam: Docket Immigrant & Refugee Appellate Center Cite as: Marie N. Peli, A (BIA May 31, 2013) 67

68 Template B4: Sample Exhibits U.S:Department of Justice Executive Office for Immigration Review Decision of the Board of Immigration Appeals F alls Church, Virginia File: A Atlanta, GA In re: MARIEN. PELI Date: MAY IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: APPLICATION: Reopening Kell Enow, Esquire Jill K. Krishnan Assistant Chief Counsel The respondent, a native and citizen of Cameroon, has appealed the Immigration Judge's decision of August 2, In that decision, the Immigration Judge denied the respondent's motion to reopen and rescind the in absentia order of removal entered on April 18, The Department of Homeland Security (DHS) has filed a brief in opposition to the appeal. The appeal will be sustained and the record will be remanded. We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R l(d)(3)(i)-(ii). Under the totality of the circumstances, upon de novo review, we conclude that the respondent established exceptional circumstances for her failure to appear in a timely fashion for the rescheduled hearing on April 18, Sections 240(b)(5)(C) and (e)(i) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5XC), (e)(l); 8 C.F.R (b)(4)(ii). The respondent had appeared at two prior hearings, was potentially eligible for adjustment of status based on her marriage to a United States citizen, and apparently had no motive to avoid the rescheduled April 18, 2012, hearing. She filed her motion in a timely manner, which explained the unique circumstances that resulted in her failure to appear. The following order will be entered. ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened, and the record is remanded to the Immigration Judge for further proceedings. Immigrant & Refugee Appellate Center FOR THE BOARD 1 We also note that it is impossible for the Board to determine if notice that the hearing was rescheduled from April 19, 2012, to April 18, 2012, was properly served on attorney Echols, as the Immigration Judge found, where the record forwarded to the Board does not contain a Form EOill-28 (Notice of Appearance) filed by attorney Echols. Cite as: Marie N. Peli, A (BIA May 31, 2013) 68

69 Template B4: Sample Exhibits. J!. ' ".../". ',..._,,.. CTED STATES DEPARTMENT () STICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW U.S. IMMIGRATION COURT 180 Spring Street Suite 241 Atlanta, Georgia IN THE MA TIER OF: CASE NO. PELI, Marie A RESPONDENT IN REMOVAL PROCEEDINGS ON BEHALF OF RESPONDENT: Kell Enow, Esq ON BEHALF OF DHS: Jill Jensen, Assistant Chief Counsel DECISION ON A MOTION A Motion to Reopen/Rescind has been filed by the Respondent in the above-referenced case. DHS opposes the motion. The motion has been duly considered and, for reasons explained more fully below, the motion will be denied. BACKGROUND By a hearing notice dated December 13, 2011, which was mailed to Respondent's attorney of record, the Court scheduled a hearing in this case for April 18, On April 18, 2012, Respondent's attorney of record, Eli Echols, appeared in Court. Respondent failed to appear at the scheduled hearing on April 18, 2012, and she was ordered removed in absentia. Approximately three months later, on July 17, 2012, Respondent filed the instant motion to reopen. OHS has filed an opposition. DISCUSSION The Immigration and Nationality Act ("INA") provides that an order of removal entered in absentia in removal proceedings may be rescinded at any time, upon a motion to reopen, if the alien demonstrates that he or she did not receive notice in accordance with section 239(a) of the Act. INA 240(b)(5)(C)(ii); 8 C.F.R (b)(4)(ii) (2007). However, if an alien received notice of the hearing, he or she must (I) file a motion to reopen within 180 days of the date of the order of removal and (2) demonstrate that the failure to appear was due to "exceptional circumstances." INA 240(b )( 5)(C)(i); 8 C.F.R (b)( 4 )(ii) (2007). The term "exceptional circumstances" is defined as "circumstances such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances [even if] beyond the control of the alien." INA 240(e)(l). Immigrant & Refugee Appellate Center Pursuant to applicable regulations, notice to counsel constitutes notice to Respondent. 8 C.F.R (c)(2); see also Matter of 19 I&N Dec. 255 (BIA 1985) (holding that notice to an alien's counsel constitutes notice to the alien). In this case, the record reflects that the hearing notice was mailed to Respondent's counsel, who appeared in Court on April 18, Respondent's motion indicates that her then-attorney, Eli Echols, contacted her and advised her of the hearing on April 18, The Court finds that notice of the hearing was 69

70 Template B4: Sample Exhibits..., properly provided t9 the Respondent. Respondent contends that she failed to appear due to exceptional circumstances. Respondent's contentions are without merit. Respondent says that sometime after the death of attorney Akuoko on February 11, 2012 and before the scheduled hearing on April 18, 20 12, she hired her present attorney, Kell Enow, to represent her in these proceedings. 1 In the motion, Respondent's present attorney, Mr. Enow, has not explained why he did not file an entry of appearance upon allegedly being retained by Respondent. 2 Moreover, although Mr. Enow claims he was aware of the April 18th hearing, he has not explained why he did not seek a continuance, call the Court on April 18th, call Mr. Echols (the attorney of record) or appear in Court on the hearing date. 3 Moreover, as discussed above, there is no evidence that Mr. Enow contacted the prior attorney to inquire regarding the status of the case or about the April 18th hearing. 1 In the motion, Respondent suggests that Mr. Akuoko was hired to represent her during removal proceedings and states that she is not sure if Mr. Akuoko entered an appearance in this case. The record shows that Mr. Akuoko was retained to represent Respondent in connection with the appeal of the denial of the visa petition, and that he filed the appeal on February 9, See Motion at page 72. Contrary to Respondent's suggestion, there is no evidence that Mr. Akuoko was hired to represent Respondent in these proceedings or that he filed an entry of appearance in this case. 2 Pursuant to the Immigration Practice Manual, an attorney must file a Form EOIR 28. Mr. Enow filed an EOIR 28 on April 18, 2012 at 2:56 pm. 3 Mr. Enow vaguely asserts that, on April 18, 2012, while he was preparing for the hearing, he checked the automated system and learned that the hearing was actually scheduled for April 18, 2012 at 9:30 am. Counsel fails to state the date on which he was allegedly hired to represent Respondent and why, upon being retained, he never either contacted Mr. Echols or checked the automated system. The Court is also mindful that the motion states that Respondent contacted Mr. Echols and "he indicated that he forwarded the hearing notice to Respondent at her last known address." Motion at page 2. Since the hearing notice was mailed to Mr. Echols on December 13, 2011, it appears that Respondent must have known sometime in late December 2011 that a new hearing notice was issued. Immigrant & Refugee Appellate Center Since Mr. Echols told Respondent that the new hearing notice was being sent to her, Respondent has not explained why (1) she did not follow up with Mr. Echols when she did not receive the hearing notice and (2) did not tell Mr. Enow, when she allegedly hired him, that she had been told by Mr. Echols that a new hearing notice was issued. Finally, it seems implausible that Mr. Echols would have told Respondent that a new hearing notice was issued, but did not also tell Respondent that the new hearing notice was issued because the date of the was to April 18, Page -2-70

71 Template B4: Sample Exhibits... ' Respondent s affidavit and other parts of the record contain only vague allegations regarding Respondent's assertion that she hired Mr. Enow to represent her at the April 18th hearing. For example, Respondent's affidavit states "[a]fter Mr. Yaw Akuoko passed away, I hired Mr. Enow Kell and I gave him all of the documents." However, since a period of two months elapsed between Mr. Akuoko's passing and the April 18th hearing, the Court is left to speculate as to the date Mr. Enow was allegedly hired. Moreover, Respondent's affidavit fails to indicate that, when she hired Mr. Enow, she informed him that a new hearing notice had been issued and that Mr. Echols had mailed the new hearing notice to Respondent's last known address. 4 In view of the foregoing, Respondent has not shown that she did not know, or could not reasonably have known, of the April 18th hearing date. Assuming that Mr. Enow represented Respondent at the time of the April 18th hearing, the record in this case fails to show diligence by Respondent. In this regard, there is no explanation as to why Respondent waited three months to file a motion to reopen. In sum, Respondent's affidavit contains assertions that seem contrary to the facts of this case. The Court finds that Respondent was made aware of the new hearing date. Respondent has not shown exceptional circumstances based on lack of notice, heavy traffic, or any circumstance beyond her control. To the extent that Respondent, through counsel, implies that she received ineffective assistance of counsel, she has not complied with Matter of Lozada, 1988 WL , 19 I. & N. Dec. 637, 639 (1988). 5 4 Also, Respondent's affidavit states that Mr. Enow called Mr. Echols' office. Interestingly, Mr. Enow makes no mention of such a telephone conversation. Immigrant & Refugee Appellate Center 5 The Court acknowledges that, in a response to DHS's Opposition, Respondent states that Mr. Echols is "willing to submit any affidavit to support Respondent's contention that he had not been in contact with" Respondent. Any such affidavit will be contrary to evidence in this case. After all, as discussed above, the motion to reopen states that Respondent spoke to Mr. Echols and was told that the new hearing notice will be mailed to Respondent's last known address and Respondent's affidavit indicates that Respondent and Mr. Enow called Mr. Echols' office and discussed the need for a G-28 as a prerequisite for the release of Respondent's file. Page -3-71