ASHFAQUE v. Holder
639 F.3d 504
8th Cir.2011Background
- Ashfaque, a Bangladeshi national, entered the US on a non-immigrant visa and later sought adjustment of status with his wife.
- INS determined his wife presented a fraudulent document; Ashfaque and wife were arrested and served a notice to appear (NTA) directing removal proceedings.
- At bond hearing, counsel Pritschet appeared; the court set bond, but Ashfaque and wife did not attend the removal hearing.
- The IJ proceeded in absentia and ordered removal to Bangladesh after questioning counsel about the couple’s absence.
- About ten years later, ICE arrested Ashfaque under the removal order and he moved to reopen, arguing improper notice.
- The IJ denied reopening, relying on the written notice indicating service on counsel and a transcript showing counsel acknowledged service at the bond hearing; the BIA dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service on counsel sufficient under §1229(a)? | Ashfaque argues personal service on him was practicable and service on counsel does not satisfy §1229(a). | Ashfaque's service on counsel at the bond hearing was proper and satisfied §1229(a). | Service on counsel satisfied §1229(a); no reopening due to sufficient service finding. |
| Did the BIA properly interpret and apply the notice requirement on motion to reopen? | Ashfaque contends the notice failure warrant reopening under §1229a(b)(5)(C)(ii). | The BIA properly relied on the transcript and written record showing service at the bond hearing. | BIA correctly found service; no reversible error in denying reopening. |
| Is there jurisdiction to review the predicate legal question about notice interpretation? | Ashfaque asserts jurisdiction over legal interpretation of §1229a(b)(5)(C). | Court has jurisdiction to review the legal interpretation while recognizing discretionary removal decisions. | Court has jurisdiction to review the predicate legal question. |
Key Cases Cited
- Sanchez-Velasco v. Holder, 593 F.3d 733 (8th Cir. 2010) (authority to review predicate legal interpretation under §1229a(b)(5)(C))