Missing a hearing and the oportunity to apply for relief is not prejudice

Orlov v. Holder, No. 09-4304 (6th Cir. Aug. 26, 2011) (unpublished)

In this case, the Court affirmed the denial of a motion to reopen in absentia proceedings.  The Court did not reach the ineffective assistance of counsel claim or the alien's diligence, instead resting on prejudice.  Because he conceded removability, he was not prejudiced by the inability to apply for relief from removal because the relief was discretionary (adjustment of status and fraud waiver). 

The Supreme Court in St. Cyr noted the importance of being able to apply for relief from removal.  In St. Cyr, the loss of this right was sufficiently prejudicial to find that 212(c) relief remained available for certain LPRs.