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Twum v. Immigration and Naturalization Service

Facts

The alien, a native and citizen of Ghana, was placed in exclusion proceedings after attempting to enter the United States. He was given written notice of a merits hearing but was denied entry to the courthouse by security guards because he did not have the hearing notice, which was with his attorney. The IJ conducted the hearing in the alien's absence and ordered him excluded for lack of prosecution. After obtaining new counsel, the alien filed a motion to reopen, which the IJ denied, treating it as a claim of ineffective assistance of counsel.

The alien, a native and citizen of Ghana, was placed in exclusion proceedings after attempting to enter the United States. He was given written notice of a merits hearing but was denied entry to the courthouse by security guards because he did not have the hearing notice, which was with his attorney. The IJ conducted the hearing in the alien's absence and ordered him excluded for lack of prosecution. After obtaining new counsel, the alien filed a motion to reopen, which the IJ denied, treating it as a claim of ineffective assistance of counsel.

Issue

Whether the IJ abused her discretion in denying the motion to reopen the exclusion proceedings based on the alien's failure to appear.

Whether the IJ abused her discretion in denying the motion to reopen the exclusion proceedings based on the alien's failure to appear.

Rule

When a respondent has been given proper notice of the time and place of a hearing but fails to appear, the IJ 'shall conduct an in absentia hearing.' If an alien later establishes that he had reasonable cause for his failure to appear, the Immigration Judge's order may be vacated and proceedings may be reopened.

When a respondent has been given proper notice of the time and place of a hearing but fails to appear, the IJ 'shall conduct an in absentia hearing.' If an alien later establishes that he had reasonable cause for his failure to appear, the Immigration Judge's order may be vacated and proceedings may be reopened.

Analysis

The court found that the IJ's application of the Lozada standard to deny the motion to reopen was arbitrary and capricious. The IJ failed to consider the alien's claim that he was barred from entering the courthouse by security guards, which was the essence of his argument for reopening the case. Instead, the IJ incorrectly framed the issue as one of ineffective assistance of counsel, which led to an improper denial of the motion.

The court found that the IJ's application of the Lozada standard to deny the motion to reopen was arbitrary and capricious. The IJ failed to consider the alien's claim that he was barred from entering the courthouse by security guards, which was the essence of his argument for reopening the case. Instead, the IJ incorrectly framed the issue as one of ineffective assistance of counsel, which led to an improper denial of the motion.

Conclusion

The court vacated the order denying the alien's motion to reopen his proceedings and remanded the matter to the BIA for further proceedings.

The court vacated the order denying the alien's motion to reopen his proceedings and remanded the matter to the BIA for further proceedings.

Who won?

The petitioner, Alexander Twum, prevailed because the court found that the IJ's decision to deny the motion to reopen was arbitrary and capricious.

The petitioner, Alexander Twum, prevailed because the court found that the IJ's decision to deny the motion to reopen was arbitrary and capricious.

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