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Keywords

appealhearingaffidavitmotiondue processvisa
appealhearingaffidavitmotiondue processvisa

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Smykiene v. Holder

Facts

The alien entered the United States in 1995 on a visitor's visa, which expired in six months, but she remained. In April 1996, she was arrested by U.S. Border Patrol officers and provided them with an Illinois address. The Immigration Court sent a notice to appear at a hearing on December 11, 1996, to that address, but the Postal Service returned the mail marked 'AttemptedNot Known.' The alien did not appear at the hearing, and the IJ ordered her deported. A year later, she married a U.S. citizen, and in 2010, immigration officers informed her of the removal order. She filed a motion to reopen the removal proceeding, claiming she never received the notice.

The alien entered the United States in 1995 on a visitor's visa, which expired in six months, but she remained. In April 1996, she was arrested by U.S. Border Patrol officers and provided them with an Illinois address. The Immigration Court sent a notice to appear at a hearing on December 11, 1996, to that address, but the Postal Service returned the mail marked 'AttemptedNot Known.' The alien did not appear at the hearing, and the IJ ordered her deported. A year later, she married a U.S. citizen, and in 2010, immigration officers informed her of the removal order. She filed a motion to reopen the removal proceeding, claiming she never received the notice.

Issue

Did the immigration judge and the Board of Immigration Appeals err in denying the petitioner's motion to reopen her removal proceedings based on the failure to receive notice of the hearing?

Did the immigration judge and the Board of Immigration Appeals err in denying the petitioner's motion to reopen her removal proceedings based on the failure to receive notice of the hearing?

Rule

An alien cannot be ordered removed from the United States without notice and an opportunity to be heard. If an alien did not receive notice of a removal hearing, they are entitled to reopen the proceeding to contest removal.

An alien cannot be ordered removed from the United States without notice and an opportunity to be heard. If an alien did not receive notice of a removal hearing, they are entitled to reopen the proceeding to contest removal.

Analysis

The court analyzed the confusion between notice and receipt, emphasizing that the petitioner had not received the notice of the hearing, which is a prerequisite for a valid removal order. The IJ's conclusion that the petitioner was 'properly notified' was flawed because it did not consider the evidence of nonreceipt, including the returned mail and the petitioner's affidavit. The court noted that the absence of evidence showing the petitioner evaded receipt of the notice entitled her to an evidentiary hearing.

The court analyzed the confusion between notice and receipt, emphasizing that the petitioner had not received the notice of the hearing, which is a prerequisite for a valid removal order. The IJ's conclusion that the petitioner was 'properly notified' was flawed because it did not consider the evidence of nonreceipt, including the returned mail and the petitioner's affidavit. The court noted that the absence of evidence showing the petitioner evaded receipt of the notice entitled her to an evidentiary hearing.

Conclusion

The court granted the petition for review and returned the matter to the Board for further proceedings, emphasizing the importance of proper notice in removal proceedings.

The court granted the petition for review and returned the matter to the Board for further proceedings, emphasizing the importance of proper notice in removal proceedings.

Who won?

The petitioner, Elena Smykiene, prevailed because the court found that she had not received proper notice of her removal hearing, which is a violation of her due process rights.

The petitioner, Elena Smykiene, prevailed because the court found that she had not received proper notice of her removal hearing, which is a violation of her due process rights.

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