Yusupov: Amended Decision To Elaborate On Why BIA's Decision Appealable

In an amended decision in Yusupov v. Mukasey, Nos. 05-4232 & 05-5411 (3d Cir. Mar. 27, 2008), the Third Circuit added a footnote to elaborate why the BIA's decision could be appealed immediately but the BIA's decision in the Vakker case was not appealable right away.

Let's compare the two cases:

• Vakker: BIA grants withholding of removal pending a background check for the IJ to make sure is done.
• Yusupov: BIA denied withholding of removal but granted deferral of removal while sending the case to the IJ to get background checks done.

Here is how the Third Circuit justified allowing an appeal in Yusupov but not Vakker: the background checks in Yusupov are completely a waste of time that will not affect anything; the background checks in Vakker, though, could have an impact by uncovering evidence that the person is barred from getting withholding of removal.

The Third Circuit explained that even if the background checks uncover major criminal convictions or membership in a major terrorist group, the person still keeps deferral of removal.

It seems like the Third Circuit is saying that the government is devoting critical resources toward doing background checks in situations where it is completely irrelevant.

This thorny issue of what BIA rulings are final such that they can be appealed will surely come up again. Especially when there are allegations of multiple blunders by immigration judges and the BIA comes up with splintered decisions on which issues it agrees need further work and which ones it does not believe have merit -- which reasonable people might think are worthy of further litigation.

Wu (not precedential): Dissenter Questions BIA's Refusal To Extend Protection To Ex-Spouse of Sterlized Chinese Woman

Wu v. Mukasey, Nos. 05-4271, 06-3892 (3d Cir. Mar. 25, 2008) (not precedential).
http://www.ca3.uscourts.gov/opinarch/054261np.pdf

What's very interesting about this case is how Judge Stapleton wrote a short dissent about one issue -- whether the BIA can refuse to extend protection to ex-spouses of women forcibly sterilized under Chinese birth control policies. In Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), the BIA took a position that the spouse of a women forced to undergo abortion or sterilization can establish part persecution, but that the ex-spouse of those woman may not.

The two-judge majority said that rule was ok and the one to apply. In the dissent, Judge Stapleton reasoned that the BIA should be required to offer more reasoning for not extending protection to people who were spouses at the time of sterilization but now are ex-spouses. Judge Stapleton believed the better approach would be to require the BIA to offer its rationale, especially where it has said that forced sterilization of a wife is an act of persecution against the husband because it naturally and predictably has a profound impact on both of them.

This seems like an unresolved issue that may come up again and require a precedential decision by the Third Circuit.

Fry (not precedential): BIA May Not Deny Continuance For Untrue Reasons

Fry v. Mukasey, No. 05-3547 (3d Cir. Mar. 24, 2008) (not precedential).
http://www.ca3.uscourts.gov/opinarch/053547np.pdf

If you are filing an appeal, you might ask the BIA to wait and grant a continuance so that other things in progress can be decided first. In this case, Mr. Fry wanted the BIA to wait on ruling whether he should be deported for overstaying his visa until USCIS could perhaps pave the way for him to get a green card through his US citizen wife. The BIA refused to delay its ruling, but the Third Circuit criticized the BIA for relying on untrue reasons. It seems like a comedy of errors:

• The BIA said it never got any proof that Mr. Fry appealed the initial denial of his I-130 application that starts the green card process. The Third Circuit, though, pointed out that the BIA did get proof of that.
• The BIA said the I-130 appeal should not have been sent to USCIS but instead to the BIA directly. The Third Circuit, though, pointed out that the rules require submitting I-130 appeals to USCIS, not the BIA. (Does the BIA not know its own rules?)
• The BIA said it never got a copy of the evidence of a real marriage that Mr. Fry used in his I-130 appeal. The Third Circuit, though, pointed out that the BIA did get a copy of a letter and brief about the I-130 appeal that included an explanation of all the evidence of a real marriage.

So it seems as if the BIA just plain got it wrong. The Third Circuit remanded the case to require them to redo their analysis of whether to grant a continuance. By now, the I-130 has been approved so it might be easy for Mr. Fry to avoid deportation by pursuing the green card application.

On another point, Mr. Fry could not invoke claim preclusion (or res judicata) to argue that INS's failed attempt to deport him in an expedited removal proceeding in April 2002 for supposedly committing an aggravated felony would prevent DHS from starting a removal proceeding in August 2002 for being removable as committing a crime involving moral turpitude. Expedited removal proceedings cannot be brought for crimes involving moral turpitude, so INS did not fully litigate that issue in April 2002. So it can't be stopped from raising it in August 2002.

Roger F. Cox of Blank Rome LLP in Philadelphia represented Mr. Fry in the appeal. The attorney who unsuccessfully argued the case for the government was Aliza B. Alyeshmerni.

Bajraktari (not precedential): Lozada Due Diligence Not Defeated By New Lawyer's Bad Performance

In Bajraktari v. Mukasey, No. 06-4202 (3d Cir. Mar. 19, 2008) (not precedential), the Third Circuit criticized the BIA for failing to reopen a case for an immigrant whose due process rights were violated because she received ineffective assistance of counsel (a Lozada-type claim).

According to the immigrant, the saga started when her first lawyer Martin Vulaj improperly failed to tell her of her new court date so she was ordered deported in absentia. Mr. Vulaj then allegedly failed to file a timely motion to reopen. She then hired Kieran Both but Mr. Both failed to raise the first lawyer's improper conduct in his motion to reopen. She then hired her third attorney Michael DiRaimondo who filed a motion to reopen for ineffective assistance of counsel and the IJ and BIA denied it because it was too late and supposedly the immigrant did not exercise due diligence. (We'll put aside the fourth months of delay caused by EOIR mistakes.)

The saga was not over. The Third Circuit remanded to the BIA on the issue of whether she exercised due diligence in pursuing her claim. The BIA concluded she had not exercised due diligence but the BIA's reasoning was faulty.

• The BIA said the immigrant never told her second lawyer of all the first lawyer's mistake but the Third Circuit points out the record shows the second lawyer wrote up items referring to the original in absentia order.
• The BIA said the immigrant took too long for the second lawyer to file a motion to reopen, but the Third Circuit points out the delay was the fault of the second lawyer, not the immigrant who diligently tried to get something filed.
• The BIA said the second lawyer's failure to complain about the first lawyer by definition means the immigrant did not use due diligence, but the Third Circuit points out that if the second lawyer acted improperly, the failure to include items was the second lawyer's fault, not the immigrant's. So you can't say the immigrant failed to act diligently.
• The BIA said the third lawyer's filing was extremely late, but the Third Circuit points out the BIA ignored how the third lawyer filed it with the IJ and only due to a mistake by EOIR was there an additional four months of delay.

Hard to tell, but it seems that the four months of delay was for EOIR to recognize that when a motion to reopen is denied as untimely and an appeal of it is denied by the BIA, a motion to reopen for ineffective assistance of counsel can be filed with the immigration court. The Third Circuit does not explain the basis for this.

Bottom line: due diligence can be shown if the immigrant makes continuous efforts to get things filed, even if the immigrant is the victim of repeated mistakes by new lawyers. Another lesson: the BIA often throws out valid claims of ineffective assistance of counsel. If you know you have a good claim, warn your client that the BIA might make a bad ruling and force you to file a time-consuming and expensive appeal to the Third Circuit to get the correct ruling you deserve.

Augustin: Defer To BIA's Refusal To Impute Parent's US Residence

In Augustin v. Mukasey, No. 06-4744 (3d Cir. Mar. 20, 2008), the Third Circuit rejected a challenge to the BIA's view that a child cannot impute his father's many years of continuous residence in order to meet the requirement of seven years of continuous residence to seek cancellation of removal for legal permanent residents.

There are a few ways someone can avoid removal. One method is to obtain cancellation of removal for legal permanent residents, which requires seven years of continuous residence in the United States after being admitted into the US in any status. Keep in mind there are certain requirements (such as how the 7 years must accumulate before committing a crime that makes the person inadmissible, needs 5 years of LPR status, cannot be convicted of an aggravated felony, and could not have used this before).

The legal issue is whether the Third Circuit must defer to the BIA's view that a child may not impute his father's continuous residence. The INA defines residence as the place of general abode such as actual dwelling place regardless of the person's intent.

Under Chevron analysis, if Congress intended a certain view then the Third Circuit will adopt it regardless of what the BIA thinks. However, if Congress's intention is not clear, the Third Circuit will defer to the BIA's view so long as its view is a permissible construction of the statute.

This is not the first case to raise this issue. In 2005, the Ninth Circuit held that imputation of the residence requirement was required. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005). Next, the BIA in this case rejected that rationale and said it was not possible. Next, the BIA in 2007 said in dicta that it did not like the imputation theory and would not follow it outside of the Ninth Circuit. Matter of Escobar, 24 I&N Dec. 231 (BIA 2007) (rejecting imputation for the requirement of 5 years of LPR status).

The Third Circuit reasoned that if the word is "domicile" then a line of cases makes clear a child can impute his parent's domicile. But the term residence is different from domicile and the BIA can say that it will refuse to impute residence. The Third Circuit concluded that Congress's goal of maintaining relationships between LPR parents and their children was not enough to make the BIA's view unreasonable. The Third Circuit left open that imputation might be required if the requirements turn in part on the child's intention, based on a line of cases regarding imputing the parent's intent to abandon LPR status. The problem in this case is that the requirements did not involve intention. Third, the Third Circuit concluded that the intent to offer relief was not so strong that the BIA's view would be unreasonable.

The Third Circuit tried hard to distinguish the case from Cuevas-Gaspar v. Gonzales, but it is debatable whether it really did so or whether there is a circuit split on the issue of imputing various types of characteristics from a child's parents.

Engy Abdelkader of Legal Services of New Jersey argued the case for Mr. Augustin and the decision was issued by visiting judge Louis H. Pollak on a panel with Judges Rendell and Chagares.

updated: Chuck Roth posted an excellent comment to the original blog posting. He points out that the Third Circuit may have incorrectly called an issue moot when it wasn't. The issue is whether the first crime problem was a conviction for immigration purposes. The Third Circuit said it was moot because the person was deportable anyway. But as Chuck comments, that seems to be incorrect -- it would make a critical difference. If the first crime problem was not a conviction, then the BIA should not have said the immigrant did not have 7 years of continuous residence as of the time of the first crime issue. Because the first crime issue would not have been the 2000 stolen property issue but instead a later crime problem more than 7 years after he came to the US (whether it was 2003 or 2005, it was more than 5 years after he came in 1995).

So it does seem like the Third Circuit made a mistake. It should have analyzed whether the first crime issue was a conviction for immigration purposes. If there is some other reason why the issue is moot, the Third Circuit should have said so. The reason it offered does not make sense. Either the Third Circuit apparently made a huge mistake or it misspoke and did not reveal the real reason the issue is moot. Maybe it can clarify this issue by issuing a correction to its opinion in the near future.

Paputchi (case settled): OIL Agrees To Remand Based On USCIS Error

Some cases get resolved through a settlement agreement between the respondent and the lawyers for the government in OIL (the Office of Immigration Litigation).

According to an article by Kietryn Zychal of the Pocono Record (Agency to reopen Paputchi immigration case, March 12, 2008), the Third Circuit granted a stay of removal for Rukie Paputchi after 60 days in detention and OIL counsel has agreed to a joint motion to reopen the case and remand it back to the BIA. The issue is that her husband was eligible for protection under NACARA, the Nicaraguan Adjustment and Central American Relief Act, and that would also protect her. In fact, he should have received official protection in 1997 but INS (today known as USCIS) made a mistake and did not grant NACARA to her husband in 1997.

Apparently, OIL and ICE looked over the case and agreed that the case should be reopened and looked over by an immigration judge. As for Rukie herself, she was too emotional to speak about her feelings.

Yusupov: National Security Bar To Withholding of Removal Requires Proof Person "Is" Not "May Be" A Danger, Incorporating the 1967 UN Protocol

Yusupov v. Mukasey, Nos. 05-4232 & 05-5411 (3d Cir. Mar. 14, 2008). Additional Note -- The Third Circuit issued an amended decision dated March 27, 2008 that added a footnote to elaborate on why the BIA's ruling was a final order capable of being appealed. The Third Circuit overturned the BIA and remanded the case in a decision that agreed on an important point with the immigrant appealing the BIA, but rejected several of the immigrant's arguments.

Congratulations to Lawrence Rudnick of Steel, Rudnick & Ruben in Philadelphia along with Bassina Farbenblum and Paul Engelmayer of Wilmer Cutler Pickering Hale & Dorr in NYC for their work on the combined case! The Third Circuit specifically commended how Mr. Rudnick worked on the case at a substantially discounted fee (nearly pro bono) while Bassina Farbenblum and Paul Engelmayer did a superb job of pro bono representation, including writing an amicus brief for the Harvard Immigration and Refugee Clinic and others.

Immigrants can avoid deportation if they qualify for withholding of removal, which requires proof that the person's life or freedom would be threatened if deported to the other country. (It is a bit more complicated than this simple description.) For withholding of removal and relief under CAT (the Convention Against Torture), even if someone seems to qualify for protection, the United States will refuse to protect anyone for whom there are reasonable grounds to believe the person is a danger to the security of the US. That language is directly from what Congress wrote at INA 241(b)(3)(B)(iv), which is also known as 8 USC 1231(b)(3)(B)(iv). (Keep in mind that even someone who is a danger can still get the limited relief of deferral of removal, so look into that if you need to.)

What Congress wrote, though, was misinterpreted by the BIA, which is part of the Justice Department. The BIA in a decision called Matter of A-H-, 23 I&N Dec. 774 (BIA 2005), stated that the United States can refuse to protect anyone where a reasonable person could believe the person may pose a danger to the national security. Do you spot the problem -- Congress will only block someone who "is a danger," but the BIA misconstrued that as blocking everyone who "may pose a danger." Congress limited the category of those blocked from CAT and withholding of removal to a small group of people who are a danger, not the much bigger group of people who may pose a danger. Yes, the category of people who "are" a danger is not the same as people who "may be" a danger. It's too bad the immigrants had to litigate all the way to the Third Circuit to make this basic clarification.

In other parts of the decision:

The Third Circuit ruled that it was acceptable for the BIA to interpret the "reasonable grounds to believe" the immigrant is a danger as being satisfied with proof similar to probable cause in criminal cases.

The Third Circuit ruled it was acceptable for the BIA to accept proof that is not intrinsically suspect, even if that evidence would not satisfy the Federal Rules of Evidence. (Note, the Third Circuit left open the question whether this rule might violate the Fifth Amendment's Due Process Clause.)

The Third Circuit ruled is was acceptable for the BIA to apply the bar upon proof that the person poses a danger to US security without requiring proof the danger is a serious danger. The Third Circuit's analysis is that saying the danger must be serious would be redundant -- it already is clear that the danger must be serious. (In a sense, the immigrants appealing the case did not lose this issue -- the Third Circuit said their argument was pointless because what they wanted already exists in the law.) In this section of the opinion, the Third Circuit sensibly and commendably looked to the international law standards that Congress intended to incorporate to the fullest extent possible. And therefore, Congress intended exceptions to protection to be applied to the narrowest possible category. Therefore, the Third Circuit fully accepted the unanimous view of international law scholars on the type of protections ensured by Article 33 of the 1967 United Nations Protocol (relating to the Status of Refugees), including the nonrefoulement obligation of Article 33.1 and the limited exception in Article 33.2 for refugees who pose a national security danger.

The Third Circuit makes clear that interpreting asylum, withholding of removal, and CAT relief requires incorporating international law principles from the 1967 U.N. Protocol.

Vakker: Remand Not Required For Most Arriving Aliens With Green Card Applications Directly Filed With USCIS

Vakker v. Mukasey, No. 06-1949 (3d Cir. Mar. 14, 2008).

The Third Circuit denied the appeal, which challenged how the BIA refused to remand a case back to the IJ.

Someone was charged as an arriving alien and wanted to seek adjustment of status. The immigrant applied to USCIS as was denied. Back in 2005, courts followed a regulation that was later repealed in May 2006. Back in 2005, the regulation said that people charged as arriving aliens can never obtain adjustment of status. Several courts ruled that the regulation was an illegal rule that violated what Congress intended in the immigration laws. That led to an interim rule in May 2006 that only allows renewal of a denied USCIS application in a specific situation that the immigrant in this case did not fit.

The immigrant asked the BIA to remand the case to hear the adjustment of status application and the BIA refused, noting that he does not fit the small situation allowing review of a denied application under the interim rule. The Third Circuit ruled that even though the 2005 regulation was invalid, the 2006 interim rule regarding the limit on review of a denied application was legitimate. The invalid 2005 rule put an improper ban on all arriving aliens from getting adjustment of status. The 2006 interim rule has a limited block -- only stopping paroled immigrants from getting review of a previously denied application.

For those of you doing these cases now, keep in mind a recent revision by USCIS to the 1245.2(a)(1) regulation. The latest interim rule says that in most situations (see the regulation for the limited exception), only USCIS can rule on an adjustment of status application and not an immigration judge. The Third Circuit did not analyze what exactly that meant, but it seems like the immigrant can directly request adjustment of status from USCIS even with a removal order hanging over his head.

This system might not make much sense and may seem quite inefficient and inconsistent to allow courts to issue removal orders even while someone is seeking adjustment of status from USCIS, but that seems to be the system the Third Circuit is calling acceptable. There is a good AILF practice advisory on this issue. It may be more sensible to hold a BIA and Third Circuit appeal until USCIS makes a ruling on a new adjustment of status application for the sake of efficiency and creating a coherent system.

Kosak: Deferring To BIA View That Adoptees Cannot Petition For Biological Siblings

In Kosak v. Aguirre, No. 06-4055 (3d Cir. Mar. 6, 2008), the Third Circuit held that the BIA's view on a particular issue deserves deference and therefore must be followed so long as it is not completely incoherent, even if the court would take a different view if you asked it.

The issue is whether an adoptee can petition for a biological sibling (a sibling from before the adoption). Joseph Hohenstein of Orlow & Orlow in Philadelphia argued the case and his team is known for excellent legal work. Nevertheless, the Third Circuit rejected their arguments in this appeal from a district court decision.

In this case a woman was adopted by her aunt but still wanted to petition for her biological sibling. USCIS first said no, then said it would approve it, then changed its mind and said no it's not possible. They appealed it to the BIA, which said it's not possible.

The Third Circuit concluded that the issue was one that is not resolved through Congress's unambiguously expressed intent in the statute's language so the courts will defer to what the BIA says as long as it is a permissible interpretation. The ambiguity is that Congress clearly severed the relationship of an adoptee to her biological parents, but was silent about the relation of an adoptee to her biological siblings.

The immigrant made a solid argument that this issue is not within Congress or the BIA's immigration authority so it deserves no deference. The Third Circuit disagreed.

The immigrant also made a logical argument that the immigration agency's view has changed so often that it should not be given any deference. Not sure why, but the Third Circuit ignored how USCIS kept changing its view and only considered the BIA's single decision in the case. It's not clear whether this was the right decision -- even though only the BIA's decision is on appeal, it is unclear whether constant change in an agency's view would include USCIS shifts. In this case, the Third Circuit said without much explanation that it didn't care about repeated changes in USCIS's view.

Huang (not precedential): Frivolousness Finding Properly Exhausted By Challenging Asylum Ruling

In Huang v. Mukasey, No. 06-4434 (3d Cir. Feb. 20, 2008) (not precedential), the Third Circuit held that the issue of whether an asylum application should be deemed as legally frivolous was sufficiently exhausted by raising to the BIA a challenge to the IJ's adverse credibility finding and resulting denial of asylum.

Because the BIA had the chance to resolve the controversy and correct its own errors, the issue was properly exhausted. In this case, the government asked for a remand if the issue was exhausted so that the BIA could apply the high standard required to find an asylum claim to be frivolous, as listed in Luciana v. Att'y Gen., 502 F.3d 273, 281 (3d Cir. 2007).

The government's effort to question whether an issue was exhausted may lead to long, drawn-out arguments in immigration court and the BIA just to make crystal clear that all arguments are being raised and exhausted with those courts. It will make those courts bogged down with additional questions and lengthy objections, but that is what the government's stance on fighting the issue of exhaustion will cause.

Patel (not precedential): Near-fatalistic View Of Effort To Hear Lozada Claim

In Patel v. Mukasey, No. 06-3893 (3d Cir. Feb. 11, 2008) (not precedential), the Third Circuit took what might be considered a near-fatalistic view of an attempt to allow someone's claim of ineffective counsel to be heard.

There is some debate about whether the standard set out in Matter of Lozada is the proper standard for someone trying to reopen a case due to ineffective assistance of counsel. Assuming for the moment that those requirements are the proper standard, one requirement to research and file a disciplinary complaint may be particularly harsh for immigrants who do not understand the legal system, have inflexible deadlines to pursue their appeal, and where there is no guide or assistance offered by the immigration courts to help people research how to file disciplinary complaints. The courts do not offer any guides on filing disciplinary complaints and there is no national hotline or clearinghouse for disciplinary complaints. Many people prepare disciplinary complaints by attempting to research where the lawyer in question is a practicing lawyer, then reviewing the way to file complaints in that state, then to review the ethical rules to find out whether a rule was allegedly broken, then trying to get the client to write something in English to support the complaint. Not an easy process, especially if you have a briefing deadline looming.

Strangely, the Third Circuit said that if it accepted how new counsel working with an immigrant who does not speak English had no time to file a well-researched disciplinary complaint while a briefing deadline was looming, the requirement to file a complaint "would be rendered a nullity." That comment seems near-fatalistic of the Third Circuit, considering briefing deadlines might be merely a few weeks as opposed to the three months to file a motion to reopen, even exercising due diligence.

The Third Circuit also rejected once again the state-created danger doctrine, an issue that is the subject of additional appeals.

Francois (not precedential): Continued Controversial View Of 212(c) Relief

In Francois v. Mukasey, No. 06-4757 (3d Cir. Feb. 11, 2008) (not precedential), the Third Circuit continued its controversial view that section 212(c) relief should not be available to someone whose underlying crimes would not only be a ground of deportability but also a ground of inadmissibility. Instead, the Third Circuit believes that 212(c) relief is not possible if the charged ground of deportability does not have a counterpart in the grounds of inadmissibility, regardless of how the underlying crime might always be a ground of inadmissibility.

The Third Circuit is following its decision in Caroleo v. Gonzales, 476 F.3d 158 (3d Cir. 2007), and refusing to agree with the Second Circuit's decision in Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007). This just contributes to a split in the circuits on this issue and there may be a chance for the Third Circuit to address this issue -- this issue also arose in Calderon-Minchola v. Mukasey, No. 06-3056 (3d Cir. Dec. 12, 2007) (not published), which has a petition for rehearing en banc pending.

Bruli (not precedential): Evidence of Not Receiving Notice Includes Pursuing Asylum Claim

In Bruli v. Mukasey, No. 05-5302 (3d Cir. Feb. 5, 2008), the Third Circuit held that IJ Eugene Pugliese and the BIA both erred by not giving careful consideration to evidence that someone who was seeking asylum did not receive notice of the hearing that she failed to appear for.

Proof of mailing by regular mail gives rise to a presumption that the person received it, but the Third Circuit insists that courts give people an opportunity to provide contrary evidence that they never actually received it.

In this case, she said she did not receive the notice, submitted affidavits from her and her attorney, had been pursuing an asylum claim which suggests she had good reason to attend if only she knew about it, and after filing the motion to reopen even filed a change of address form for moving to another address.

IJ Pugliese erred by saying that it was insufficient for her just to say she never got the notice. She had offered much more evidence than just her own words that she never got it -- the Third Circuit remanded the case to the BIA so that it could apply the fairly recently-announced standard that people can try to rebut a presumption of receiving a notice that the court sent by regular mail.

Saeteros-Torres (not precedential): Hard To Prove Didn't Receive Court Notice If No Relief Available

In Saeteros-Torres v. Mukasey, No. 07-1294 (3d Cir. Jan. 29, 2008) (not precedential), the Third Circuit revisited how failure to receive notice of a court hearing is something you can argue and try to convince the immigration judge. If the court did not mail its notice to you by certified mail but instead only by regular mail, then there is a presumption of receipt that you can overcome with corroborating circumstantial evidence.

Here, the Third Circuit said the circumstantial evidence was not so obviously enough that it could overturn the BIA's refusal to reopen the case. Strangely, it seems the Third Circuit said that the person did not have a way to avoid deportation such as being eligible for a green card under the Cuban Adjustment Act, so it was not so clear that the person did not receive the notice.

This is a bit controversial because the person was arguing about a type of relief that would have been possible -- asking for and getting voluntary departure. Seems the Third Circuit does not see voluntary departure (a way to avoid a deportation order) as compelling enough a motive to attend a court hearing so that it seems clear the person did not receive the notice. Maybe tips for the future are to include personality tests that show the person has a high level of obeying rules and complying with authority -- to offer more circumstantial evidence of not wanting to avoid a court date?

Okereke (not precedential): No Review Of Refusal To Reopen VAWA-victim Case

In Okereke v. Mukasey, No. 06-3612 (3d Cir. Jan. 29, 2008) (not precedential), the Third Circuit held it had no power to review the BIA's refusal to exercise its discretion to reopen a removal case for someone who is the victim of domestic violence.

The Violence Against Women Act (VAWA) provides key protections for domestic violence victims and even offers a specific way to reopen a case if you are a domestic violence victim and file a motion to reopen within one year of when you were ordered deported. (This is simplified and there are more specific requirements that you can find if you look up the law.)

If, however, you were ordered deported over a year ago, your only hope under the immigration laws is to ask the court to be nice and reopen the case. If the court refuses, the Third Circuit will not review how the court exercised its discretion, citing 8 USC 1252(a)(2)(B)(ii), which took away the power to review a small set of rulings where the law says the only authority for that act is in the Attorney General's discretion.

If you are trying this, look at footnote 3, which notes that the Third Circuit did not address in this case any challenges based on constitutional claims and issues of law -- so that might be the only area where you might try appealing to the Third Circuit for this type of case.