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Keywords

jurisdictionattorneyappealhearingmotionnaturalizationjudicial review
jurisdictionattorneyappealhearingmotionnaturalizationjudicial review

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Bejar v. Ashcroft

Facts

Bejar was admitted lawfully to the United States in 1979 as a permanent resident. Over the next 20 years, she was convicted of three separate theft offenses. In 1998, she left the country for three weeks. When she returned, she sought admission as a lawful returning permanent resident. Based on her criminal convictions, however, she was denied admission and placed in removal proceedings. Though her attorney received notice of the removal hearing, the immigrant failed to appear. The immigration court ordered her removed from the country in absentia. The immigrant did not appeal this order. Her motion to reopen her removal case was denied. She was returned to Ecuador more than a week before her time to appeal the motion to reopen lapsed.

Bejar was admitted lawfully to the United States in 1979 as a permanent resident. Over the next 20 years, she was convicted of three separate theft offenses. In 1998, she left the country for three weeks. When she returned, she sought admission as a lawful returning permanent resident. Based on her criminal convictions, however, she was denied admission and placed in removal proceedings. Though her attorney received notice of the removal hearing, the immigrant failed to appear.

Issue

Whether the court has jurisdiction to review the legal basis for the removal order and whether the removal was lawful given the timing of the removal in relation to the appeal period.

Whether the court has jurisdiction to review the legal basis for the removal order and whether the removal was lawful given the timing of the removal in relation to the appeal period.

Rule

An alien must exhaust all administrative remedies available to them as of right prior to seeking judicial review of a final administrative removal order. A removal order entered in absentia may be rescinded only upon a motion to reopen filed within 180 days after the date of removal, if the alien demonstrates that the failure to appear was because of exceptional circumstances, or at any time if the alien demonstrates that they did not receive notice in accordance with Section 239 of the Immigration and Nationality Act.

An alien must exhaust all administrative remedies available to [her] as of right prior to seeking judicial review of a final administrative removal order, 8 U.S.C. 1252(d) (2000), and we have held that an alien's failure timely to appeal to the BIA the IJ's denial of his motion to reopen constitutes a failure to exhaust administrative remedies.

Analysis

The court applied the rule by determining that Bejar received constructive notice of her removal hearing through her attorney, which legally constituted notice to her. The court noted that Bejar's claims of ineffective assistance of counsel and lack of notice did not provide grounds for reopening her case, as she failed to appeal the in absentia removal order within the required timeframe. The court concluded that the INS acted lawfully in removing her before her time to appeal had run, as there was no automatic stay of removal during the appeal period.

The court applied the rule by determining that Bejar received constructive notice of her removal hearing through her attorney, which legally constituted notice to her. The court noted that Bejar's claims of ineffective assistance of counsel and lack of notice did not provide grounds for reopening her case, as she failed to appeal the in absentia removal order within the required timeframe.

Conclusion

The appeals court concluded that the INS acted lawfully in removing Bejar before her time to appeal had lapsed and denied her petition to review the BIA's order dismissing her appeal.

The appeals court concluded that the INS acted lawfully in removing Bejar before her time to appeal had lapsed and denied her petition to review the BIA's order dismissing her appeal.

Who won?

The Immigration and Naturalization Service (INS) prevailed in the case because the court found that Bejar received proper notice through her attorney and did not take the necessary steps to appeal her removal order.

The Immigration and Naturalization Service (INS) prevailed in the case because the court found that Bejar received proper notice through her attorney and did not take the necessary steps to appeal her removal order.

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