Wednesday, February 14, 2007

Santiago: Advanced Strategies To Reopen In Absentia Orders

In Santiago v. Gonzales, No. 06-2148 (3d Cir. Feb. 14, 2007) (not precedential), the Third Circuit summarized some of the advanced theories for trying to reopen a case where an immigration judge issued an order in absentia (when the respondent did not show up on the court date). These types of cases are difficult to win, but very important to litigate. They are some of the most satisfying to win because the stakes are so high (if you can't reopen the case, the removal order remains and there is almost no chance to obtain legal status).

In this case, the BIA and IJ Annie S. Garcy made a mistake by not analyzing three advanced issues when someone did not show up for a court date: (1) where the address where items were sent qualified as a 239(a)(1)(F) address [for example, if the respondent never got the Notice to Appear, he or she did not receive the requirement to update addresses], (2) whether proof of not getting the court letter overcomes the rebuttable presumption that a mailing was received by the respondent, and (3) whether ICE can argue that the respondent got constructive notice.

In this case, the respondent had a great deal of evidence that her husband was abusive and probably got the court letters and hid them from her so she honestly never knew of the court date.

It's important not to view IJ Garcy too harshly based on this case. Immigration Judges in the Second Circuit have also frequently made similar errors about whether there is evidence someone did not receive the mailed court notice. See, for example, Silva-Carvalho Lopez v. Gonzales, No. 05-6878 (2d Cir. Nov. 2, 2006). Also, we have successfully won a motion to reopen an in absentia order before Judge Garcy, where she very intelligently and meticulously followed the letter of the law, just as we argued in our motion.


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