BIA: In absentia order entered without notice may be reopened even after non-citizen’s departure from USA

In a published decision issued last week the BIA held that a non-citizen’s departure from the USA while under an order of deportation or removal that was issued in absentia does not deprive the Immigration Judge of jurisdiction to consider a motion to reopen to rescind if the motion is based on a lack of notice. See Section 101(g) of the INA provides that a person who has been ordered removed is considered to have been removed at the moment she leaves the USA even if she leaves of her own volition.

“It has long been held that an alien’s departure from the United States while under an outstanding order of deportation has the effect of executing the order, thereby bringing finality to the deportation proceedings and depriving the immigration courts and this Board of jurisdiction to entertain motions with respect to the underlying order.” Matter of Bulnes-Nolasco, 25 I&N Dec. at 58 (citing Matter of Okoh, 20 I&N Dec. 864, 864-65 (BIA 1994); Matter of Yih-Hsiung Wang, 17 I&N Dec. 565, 567 (BIA 1980)).

The BIA first explained that an in absentia order issued without having properly notified the non-citizen of the hearing cannot serve as the basis for removal. Matter of Bulnes-Nolasco, 25 I&N Dec. at 59. Relying on the Eleventh Circuit’s decision in Contreras-Rodriguez v. U.S. Atty Gen., 462 F.3d 1314 (11th Cir. 2006), the BIA concluded that

“An in absentia deportation order issued in proceedings of which the respondent had no notice is voidable from its inception and becomes a legal nullity upon its rescission, with the result that the respondent reverts to the same immigration status that he or she possessed prior to entry of the order. ” Matter of Bulnes-Nolasco, 25 I&N Dec. at 59.

The BIA then held that an IJ does have jurisdiction to consider whether a motion to reopen is properly before the Immigration Court. Matter of Bulnes-Nolasco, 25 I&N Dec. at 59.

The Board concluded its decision with a passage of immense importance to immigration attorneys. Not only did the BIA explain the specific process by which an IJ must consider a motion to reopen under these circumstances, but the BIA also stated that because a rescinded order of deportation or removal has no legal effect whatsoever an individual against whom such an order has been entered is in the same legal status as before the entry of the order. As the Board explained,

“Before an Immigration Judge may conclude that he lacks jurisdiction to reopen by virtue of an alien’s departure while under an outstanding order of deportation, he must first determine that an ‘order of deportation’ existed at the time of departure. If an alien establishes that his departure from the United States occurred after the entry of an in absentia deportation order that is subject to rescission, an Immigration Judge’s decision rescinding that order constitutes a binding judgment that the order was void ab initio, thereby precluding it from being used as the predicate for an act of ‘self-deportation’ under section 101(g) of the Act. Applying the jurisdictional bar to reopening in a case involving an inoperative in absentia deportation order would give that order greater force than it is entitled to by law and would, as a practical matter, impose a limitation on motions to rescind that is not compatible with the broad language of 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2).” Matter of Bulnes-Nolasco, 25 I&N Dec. at 59-60.

This holding might sound unremarkably logical to most attorneys, but to those of us who have been frustrated by the fact that a non-citizen’s physical exit from the country meant the end of the legal road, this decision is a very welcomed development.