05 Apr 2012
Unpub. BIA In Absentia Victory: Matter of Wajay
Eric Bjotvedt writes: "Attached
is a decision your readers may find very helpful on the issue of
reopening cases where the alien received notice but failed to show up
anyway. In this case, I informed the judge that I did not know why my
client did not show up but that I did give him notice. The judge
ordered him removed in absentia. Later,
I prepared and filed a pro se motion to rescind for him since he was in
ICE custody because it was confident it would be removing him soon and
because he was without resources and support. The motion argued that he
did not recall getting notice from me and, alternatively, that if the
court deemed him to have received notice, he was sorry for not appearing
and that he had no reason not to show up given all of his efforts to
pursue relief during the proceedings before the absentia order was
issued. The government vigorously opposed and the judge denied the
motion. I
then filed an appeal for him at the BIA and renewed my “totality of the
circumstances” argument, notwithstanding the fact the respondent had
notice of the hearing and simply forgot to show up. The BIA, unlike the
judge, acknowledged and addressed this argument, and I prevailed. As
I said to you in regard to another case I recently won at the BIA, it
is so, so, so important to always argue the “totality of the
circumstances” involved in a case, especially where, as in this case,
this may be your only argument." - Matter of Wajay, A078-656-350, Mar. 22, 2012, unpub.