Assan Jeng v. U.S. Attorney General
704 F. App'x 915
| 11th Cir. | 2017Background
- Assan Jeng was charged in 2006 with removability for overstaying his permitted time in the U.S. and was served a Notice to Appear.
- Jeng failed to appear at his removal hearing on July 3, 2007; an Immigration Judge entered an in absentia removal order that day.
- Jeng learned of the in absentia order on October 31, 2007 but did not move to reopen until February 2014 (about six years later).
- The IJ denied Jeng’s motion to reopen, finding he failed to rebut the presumption he received the Notice to Appear and that he lacked due diligence.
- The Board of Immigration Appeals affirmed both bases for denial; Jeng petitioned for review claiming the BIA’s denial was arbitrary and capricious.
- The Eleventh Circuit assumed, without deciding, that Jeng did not receive the Notice to Appear but nonetheless upheld the BIA’s discretionary denial because of Jeng’s unexplained six-year delay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion in denying motion to reopen rescinding in absentia order | Jeng: denial arbitrary; he acted with diligence once eligible for relief (marriage to U.S. citizen) | BIA: motion was untimely and Jeng lacked due diligence in seeking reopening after learning of the order | Held: No abuse of discretion; BIA permissibly denied reopening for lack of diligence |
| Whether Jeng rebutted the presumption he received the Notice to Appear | Jeng: argued he never received the notice (court assumed this for argument) | BIA: found he failed to rebut the presumption of receipt | Held: Court did not decide; assumed nonreceipt and affirmed denial on other grounds |
Key Cases Cited
- Jiang v. U.S. Att’y Gen., 568 F.3d 1252 (11th Cir.) (standard: BIA denial of motion to reopen reviewed for abuse of discretion)
- Anin v. Reno, 188 F.3d 1273 (11th Cir.) (BIA has broad discretion to deny motions to reopen even if prima facie case exists)
- Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir.) (abrogation on other grounds referenced)
- Zhang v. U.S. Att’y Gen., 572 F.3d 1316 (11th Cir.) (review limited to whether BIA acted arbitrarily or capriciously)
- Ali v. U.S. Att’y Gen., 443 F.3d 804 (11th Cir.) (motions to reopen are disfavored; delay generally harms the government’s interest)