Background

• Dorna Miller, a Salvadoran national, entered the U.S. unlawfully in 2004; DHS mailed hearing notices to an address that were returned undeliverable. An immigration judge ordered her removed in absentia on May 7, 2004.
• Miller learned of the removal order only after she reentered the U.S. illegally in 2013; DHS reinstated the 2004 removal order under 8 U.S.C. § 1231(a)(5) and charged her with illegal reentry.
• During reinstatement proceedings, Miller was found eligible for withholding of removal but not asylum; after criminal proceedings she sought to rescind the 2004 in absentia order by filing a motion to reopen in 2014 under 8 U.S.C. § 1229a(b)(5)(C)(ii) (lack of notice; “at any time”).
• The immigration judge and the BIA held they lacked jurisdiction to hear the motion because § 1231(a)(5) states a reinstated prior removal order “is not subject to being reopened or reviewed.”
• Miller petitioned for review in the Ninth Circuit, arguing § 1231(a)(5) does not bar a § 1229a(b)(5)(C)(ii) motion to reopen a removal order entered in absentia due to lack of notice.
• The Ninth Circuit reviewed the legal question de novo, found the BIA’s single-member ruling undeferential, and concluded the BIA erred in holding § 1231(a)(5) deprived the immigration court of jurisdiction to consider Miller’s motion to reopen.

Issues

Key Cases Cited

• Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (construed reinstatement statute to preserve avenue to challenge in absentia orders for lack of notice)
• Clark v. Martinez, 543 U.S. 371 (2005) (canon of avoiding constitutional problems in statutory construction)
• Lezama-Garcia v. Holder, 666 F.3d 518 (9th Cir. 2011) (standard of review for BIA legal rulings and deference discussion)
• Andia v. Ashcroft, 359 F.3d 1181 (9th Cir. 2004) (recognizing right to seek reopening under § 1229a(b)(5)(C)(ii))