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Murillo-Robles v. Lynch

United States Court of Appeals, First Circuit

October 7, 2016

DANIEL EMERSON MURILLO-ROBLES, Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

         PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Carlos E. Estrada, with whom Estrada Law Office was on brief, for petitioner.

          Sabatino F. Leo, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

          Before Howard, Chief Judge, Selya and Kayatta, Circuit Judges.

          SELYA, Circuit Judge.

         Although the Board of Immigration Appeals (BIA) has broad discretion in the disposition of motions to reopen, broad discretion is not the same as unfettered discretion. This case, which arises out of an in absentia removal order against a youthful alien who was ill-served by not one but two lawyers, illustrates that verity. After careful consideration, we conclude that the BIA abused its discretion when it found that the circumstances attendant to entry of the removal order were not exceptional. Accordingly, we grant the petition for review, reverse the BIA's denial of the motion to reopen, and remand with instructions to set aside the in absentia removal order and reopen the petitioner's removal proceedings.

         I. BACKGROUND

         The petitioner, Daniel Emerson Murillo-Robles, is a Peruvian national. He became a lawful conditional resident of the United States in 2001 at age 11. In October of 2003, his mother and his stepfather (a United States citizen) jointly filed an I-751 petition with United States Citizenship and Immigration Services (USCIS), seeking to make the petitioner's residency unconditional. USCIS denied this petition in November of 2006, citing the failure on the part of the attorney representing the family to respond in a timely fashion to its request for additional information.

         The government proceeded to initiate removal proceedings against the petitioner in February of 2007. The petitioner conceded removability and sought review of the denial of the original I-751 petition. He received a series of continuances, partly because his mother and stepfather filed a second I-751 petition in 2009. That petition was denied by USCIS after the attorney who prepared it failed adequately to explain the delay in filing. The attorney was subsequently disbarred, and the petitioner's family hired a new attorney in the spring of 2011.

         Eventually, a merits hearing was scheduled for April 30, 2012 at 8:00 a.m. That day, the petitioner did not appear at 8:00 a.m. but, rather, arrived at approximately 8:30 a.m., thinking that his hearing was set for 9:00 a.m. This interval, though brief, proved consequential: at 8:19 a.m., the immigration judge (IJ) entered an order of removal in absentia. When the IJ entered the order, he told the petitioner's lawyer that if she moved to reopen the case when the petitioner arrived, he would consider the motion. The petitioner appeared minutes later, and his family agreed to pay the lawyer to file a motion to reopen. Nevertheless, the lawyer did not file the motion (even though she took the money). Shortly thereafter, the lawyer's license to practice law was suspended for neglecting a number of immigration cases.

         The petitioner retained yet a third attorney and moved to reopen his immigration case in July of 2015.[1] He explained that his failure to arrive punctually at his April 2012 hearing stemmed from his mistaken assumption that this hearing - like many earlier immigration court hearings that he had attended on time - would commence at 9:00 a.m. He also described the myriad ways in which his first two attorneys had provided ineffective assistance of counsel and argued that this deficient representation had prevented him from attaining legal permanent resident status.

         The IJ agreed that the petitioner had received ineffective assistance of counsel and, thus, excused the untimely filing of his motion to reopen. Withal, the IJ found that the petitioner had not carried his burden of showing that exceptional circumstances surrounded his failure to appear. Noting that the hearing notice "clearly and unambiguously" showed an 8:00 a.m. start time, the IJ concluded that the petitioner's failure to be present at the appointed time could not be attributed to his lawyers' inadequacies. Nor did the IJ perceive any sufficient reason for exercising his discretionary authority to reopen the case sua sponte. See 8 C.F.R. § 1003.23(b).

         In due course, the BIA affirmed the IJ's decision. This timely petition for judicial review followed. See 8 U.S.C. § 1252(a)(1), (b)(1).

         II. ...


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