CA4 on In Absentia Order: Tardy Does Not Mean Absent - Salomao v. Garland

Salomao v. Garland (unpub.)

"This case arises out of an in absentia order against two Petitioners who allege to have arrived one hour and five minutes late to their individual hearing scheduled for several hours. Neither the immigration judge (“IJ”) nor the Board of Immigration Appeals (“BIA”) addressed this argument. For the reasons that follow, we find that the BIA abused its discretion when it made no mention of the alleged late arrival in its decision to dismiss the motion to reopen proceedings on appeal. Thus, we reverse and vacate the BIA’s order and remand for further proceedings consistent with this opinion. ... We vacate and remand with instructions to the BIA to consider Petitioners’ motion to reopen. In doing so, the BIA should determine whether Petitioners arrived late, and if so, whether the surrounding circumstances show that this late arrival constitutes a failure to appear for the purposes of the statute’s preclusive effect."

[Hats off to Helen Parsonage!]