929 F.3d 812
7th Cir.2019Background
- Jiri Vyloha, a Czech citizen who overstayed a non‑immigrant visa after entering in 1998, was charged with removability in 2006 and served a Notice to Appear that did not state a specific date/time.
- Vyloha appeared before an IJ on October 13, 2006; the IJ confirmed he was comfortable proceeding in English, personally served him written notice, and orally informed him his next hearing was set for May 18, 2007 and warned him of consequences for nonappearance.
- Vyloha did not appear at the May 2007 hearing; the IJ ordered removal in absentia.
- In September 2017, after being detained by ICE, Vyloha moved to reopen and to rescind the in absentia order under 8 U.S.C. § 1229a(b)(5)(C), claiming lack of notice due to limited English and ineffective assistance of counsel; he alternatively asked the IJ to reopen sua sponte.
- The IJ denied the motion (finding Vyloha had adequate notice, did not show prejudice from counsel, and failed to exercise due diligence for equitable tolling); the Board affirmed in May 2018.
- Vyloha later moved for reconsideration invoking Pereira (June 2018) to argue the original Notice’s lack of a date/time deprived the court of jurisdiction; the Board denied reconsideration and Vyloha challenged both Board decisions in this consolidated appeal.
Issues
| Issue | Vyloha’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether the Board abused its discretion in affirming denial of motion to reopen/rescind the in absentia order | Vyloha: lacked notice (language barrier) and counsel ineffective; equitable tolling and sua sponte reopening warranted | Personal service (oral & written) in October 2006 put Vyloha on notice; Vyloha conceded no due diligence; no exceptional circumstances for sua sponte relief | Board did not abuse discretion; IJ’s factual findings supported; motion untimely and no equitable tolling |
| Whether lack of date/time on original Notice deprived courts of subject‑matter jurisdiction under Pereira | Vyloha: Pereira means the defective Notice rendered proceedings void for lack of jurisdiction | Government: Ortiz‑Santiago controls—§1229(a)(1)(G)(i) is a claim‑processing rule, not jurisdictional; objection must be timely | Claim is foreclosed by Ortiz‑Santiago; defect is a forfeitable claim‑processing rule and Vyloha’s objection was untimely and not excused |
| Whether Vyloha can show prejudice to excuse forfeiture of the Pereira claim | Vyloha: prejudice from defective Notice could wipe out proceedings | Government: Vyloha received later personal, oral, and written notice and confirmed English proficiency; no prejudice shown | No prejudice shown; forfeiture not excused |
| Whether IJ/Board should have granted sua sponte reopening | Vyloha: exceptional circumstances (lack of notice, counsel misconduct) justify extraordinary remedy | Government: sua sponte relief is extraordinary and Vyloha waited ~10 years; no exceptional circumstances | Denied—no exceptional circumstances and delay fatal |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court decision on adequacy of Notices to Appear)
- Ortiz‑Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (statutory notice requirement is a claim‑processing rule, not jurisdictional)
- United States v. Arita‑Campos, 607 F.3d 487 (7th Cir. 2010) (no‑notice motions to rescind may be filed at any time)
- Singh v. Holder, 749 F.3d 622 (7th Cir. 2014) (personal service in English to non‑English speaker typically satisfies due process)
- Sembhi v. Sessions, 897 F.3d 886 (7th Cir. 2018) (standard of review and scope for motions to reconsider)