Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Wednesday, June 9, 2010

Motion to reopen an in absentia order

In re Alawie, A094-250-122, 2010 WL 2224567 (BIA May 5, 2010) (unpublished).

The BIA reversed an Immigration Judge's denial of a motion to reopen an in absentia removal order.  The alien did not live at the address of record but used as a mailing address.  The BIA reopened based on (1) an affidavit from the resident of the address stating that he did not receive the hearing notice and would have given it to the alien if he had received it, (2) the alien had a reason to appear at his hearing because he is eligible for cancellation of removal, and (3) the alien acted quickly in filing the motion (he filed it two days after the order was entered).

Returning LPR burden of proof

In re Valero-Pena, A099-120-766, 2010 WL 2224531 (BIA May 20, 2010) (unpublished). 

The respondent, an LPR, was charged with drug trafficking but the charges were ultimately dismissed.  Later, he traveled abroad and was denied entry and paroled into the U.S.  He was charged with removability under INA s 212(a)(2)(C) as a noncitizen who the Attorney General has reason to believe is or was a drug trafficker.  The Immigration Judge sustained the removal charge and the LPR appealed.

On appeal, the BIA remanded.  The BIA was concerned that the Immigration Judge did not place the burden of proof on the DHS.  Because the respondent had a colorable claim to returning resident status, the burden was on the DHS to establish removability by clear, unequivocal, and convincing evidence (the concurring opinion took issue with the "unequivocal" portion of the standard).  The BIA was not convinced that the Immigration Judge applied this "exacting standard" or that the judge properly weighed the evidence in light of this standard.