FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
E. Estrada, with whom Estrada Law Office was on brief, for
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.
Howard, Chief Judge, Selya and Kayatta, Circuit Judges.
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
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.
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.
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.
petitioner retained yet a third attorney and moved to reopen
his immigration case in July of 2015. 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.
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. §
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).