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Galvez-Vergara v. Gonzales

Facts

Galvez was admitted to the United States and later convicted of forcible sexual abuse. After being charged with removability, he received notice of a hearing but relied on his attorney's assurance that he did not need to appear. The IJ found him removable in absentia after neither he nor his attorney appeared at the hearing. Galvez later sought to reopen the proceedings, claiming ineffective assistance of counsel.

Galvez was admitted to the United States and later convicted of forcible sexual abuse. After being charged with removability, he received notice of a hearing but relied on his attorney's assurance that he did not need to appear.

Issue

Whether the advice of an attorney not to appear at an immigration proceeding constitutes an exceptional circumstance beyond an alien's control.

Whether the advice of an attorney not to appear at an immigration proceeding constitutes an exceptional circumstance beyond an alien's control.

Rule

An in absentia removal order may be rescinded only upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in 8 U.S.C. 1229a(e)(1).

An in absentia removal order may be rescinded only upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in 8 U.S.C. 1229a(e)(1).

Analysis

The court analyzed whether the IJ's decision to deny the motion to reopen was an abuse of discretion. It noted that the BIA's precedent allows for counsel's erroneous instruction not to appear at an immigration hearing to constitute an 'exceptional circumstance.' The court found that the IJ failed to address relevant precedents that could have applied to Galvez's case, which indicated an arbitrary disregard of established policy.

The court analyzed whether the IJ's decision to deny the motion to reopen was an abuse of discretion. It noted that the BIA's precedent allows for counsel's erroneous instruction not to appear at an immigration hearing to constitute an 'exceptional circumstance.'

Conclusion

The court granted the petition for review and remanded the case for additional consideration consistent with its opinion.

The court granted the petition for review and remanded the case for additional consideration consistent with its opinion.

Who won?

Galvez-Vergara prevailed in the case because the court found that the BIA's decision to disregard relevant precedents without explanation was arbitrary and an abuse of discretion.

Galvez-Vergara prevailed in the case because the court found that the BIA's decision to disregard relevant precedents without explanation was arbitrary and an abuse of discretion.

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