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December 02, 2005

Second Circuit Vacates Denial of MTR In Absentia Proceedings

Twum v. Gonzales, (2d Cir. June 8, 2005): docket no. 02-4187 under "Decisions"/ "Search All".

On June 27, 1995, Petitioner arrived at the public entrance of the New York City immigration court prior to his schedule asylum and withholding hearing. Building guards, however, refused to admit Petitioner to enter the building because he did not have his hearing notice. Petitioner tried, unsuccessfully, to explain to the guards that the notice was in the possession of his attorney. Petitioner waited outside the building until his then attorney exited. The attorney informed Petitioner that he had attended the hearing alone, that there was nothing further he could do for Petitioner, and that he would receive a notice in the mail. In a decision dated June 30, 1995, the immigration judge denied Petitioner's relief applications and ordered him excluded.

In February 1997, new counsel filed a motion to reopen the exclusion proceedings with the IJ, arguing that Petitioner had established the requisite reasonable cause for reopening in absentia proceedings under the applicable pre-IIRIRA standard. In September 1997, the immigration judge (IJ) denied the motion. The IJ construed the motion as "in essence" alleging ineffective assistance of counsel as the cause for his failure to appear because the motion alleged that Petitioner did not have the hearing notice because he and his prior attorney failed to meet outside the building on the morning of the hearing. Thus, view the motion as primarily predicated on ineffective assistance of counsel, the IJ determined that Petitioner's motion failed to comply with the procedural requirements for motions to reopen for ineffective assistance of counsel set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Petitioner appealed the denial of the motion to reopen to the Board of Immigration Appeals (BIA) in October 1997 and the BIA summarily affirmed the IJ's decision without opinion in April 2002.

The Second Circuit, reviewing the rationale of the IJ's decision, held that it was an abuse of discretion for the IJ to determine that Petitioner could not show "reasonable cause" for his failure to appear. The court reasoned that the IJ did not consider on the merits whether the evidence presented by Petitioner established reasonable cause. The court found that the IJ's application of Matter of Lozada was arbitrary and irrational. The court concluded that the "essence" of Petitioner's claim was "that security guards barred his entry to the court despite his protest that he had a hearing and that his lawyer had the hearing notice." ". . .[T]he mere involvement of an attorney in the background of the claim does not talismanically convert it into one triggering Lozada's stringent requirements," the court said.

The court declined to decide whether Petitioner had established reasonable cause for his failure to appear. Instead the court remanded the case to the BIA for the agency to make this determination in the first instance in light of the court's opinion.

Posted by VisaLawyer at December 2, 2005 09:05 AM


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