In Madrigal v. Holder, the Sixth Circuit held that the withdrawal provisions of 8 C.F.R. s 1003.4 do not apply where the departure was involuntary. 572 F.2d 239 (6th Cir. 2009). Madrigal was removed during her appeal to the BIA because there was no automatic stay in place. She was ordered removed in absentia, filed a motion to reopen, and then appealed the denial of that motion to the BIA. The BIA did not enter a stay and ICE removed her.
On remand, the BIA remanded to the Immigration Judge to consider whether she received actual or constructive notice of the hearing, in light of the intervening precedent decisions Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008) and Matter of C-R-C, 24 I&N Dec. 677 (BIA 2008).
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