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jurisdictionhearingmotiondue process
jurisdictionstatutehearingmotion

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Miller v. Sessions

Facts

Dorna Miller, a native of El Salvador, entered the U.S. unlawfully in 2004 and was ordered removed in absentia after failing to appear for her hearing, which she claims she never received notice of. After years of living abroad, she attempted to reenter the U.S. in 2013, at which point she learned of her removal order. The Department of Homeland Security reinstated her removal order, prompting her to file a motion to reopen the case based on lack of notice.

Miller says she never received a copy of the judge's decision and thus did not know that she had been ordered removed. Years passed without any further contact from immigration officials. In 2011, Miller voluntarily moved to Canada with her family to seek refugee status there, but the Canadian government denied her request. In September 2013, Miller unlawfully attempted to reenter the United States. She was apprehended at the border, and immigration officials quickly discovered that she had been ordered removed in May 2004.

Issue

The main issue was whether a non-citizen can file a motion to reopen a removal order entered in absentia under 8 U.S.C. 1229a(b)(5)(C)(ii) after the order has been reinstated under 8 U.S.C. 1231(a)(5).

The question presented in this case is what happens when these two statutory provisions collide? If DHS reinstates a removal order that was entered in absentia, can the non-citizen still file a motion to reopen under 1229a(b)(5)(C)(ii) 'at any time' on the ground that she never received notice of the prior hearing?

Rule

The court applied the legal principles from the Immigration and Nationality Act, specifically 8 U.S.C. 1229a(b)(5)(C)(ii), which allows a non-citizen to seek reopening of a removal order based on lack of notice, and 8 U.S.C. 1231(a)(5), which governs the reinstatement of removal orders.

8 U.S.C. 1229a(b)(5) authorizes immigration judges to order non-citizens removed from the country in absentia that is, in the person's absence. Such orders may be entered when a non-citizen is directed to appear at a removal hearing but fails to show up, provided the government proves that it gave written notice of the hearing as required by statute and that the non-citizen is in fact removable.

Analysis

The court found that the BIA erred in concluding that 1231(a)(5) barred the immigration judge from considering Miller's motion to reopen. The court noted that due process concerns arise when a non-citizen is not given notice of a removal hearing, and that the statutory provisions must be interpreted to allow for a motion to reopen based on lack of notice.

We conclude that the BIA wrongly held that the immigration judge lacked jurisdiction to consider Miller's motion to reopen. We acknowledge at the outset that the government's interpretation of 1231(a)(5) is not foreclosed by the text of the statute. It's possible that Congress intended to bar collateral attacks on a prior removal order whenever DHS decides to invoke the reinstatement procedure, even if the prior order was entered in absentia and the non-citizen received no notice of the earlier hearing.

Conclusion

The Ninth Circuit granted Miller's petition for review and remanded the case, allowing her motion to reopen to be considered on its merits.

We grant Miller's petition for review and remand the case so that the agency can decide Miller's motion to reopen on the merits.

Who won?

Dorna Miller prevailed in the case because the court found that the BIA incorrectly held that the immigration judge lacked jurisdiction to consider her motion to reopen.

Dorna Miller prevailed in the case because the court found that the BIA incorrectly held that the immigration judge lacked jurisdiction to consider her motion to reopen.

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