Murillo-Robles v. Lynch, 2016 U.S. App. LEXIS 18307

Background

Petitioner Daniel Murillo-Robles, a Peruvian who became a conditional lawful resident as a child, faced removal after USCIS denied his family's I-751 petitions (2006 and 2009) due to attorney failures.
Removal proceedings began in 2007; numerous continuances followed and multiple attorneys represented the petitioner; two attorneys provided ineffective assistance and one was later disbarred/suspended.
A merits hearing was set for April 30, 2012 at 8:00 a.m.; petitioner arrived ~8:30 a.m. believing the hearing began at 9:00 a.m.; IJ entered an in absentia removal order at 8:19 a.m.
The petitioner’s counsel at the hearing was told the IJ would consider a reopening motion if filed upon arrival, accepted payment to file a motion, but failed to file it; counsel’s license was later suspended for neglect.
Petitioner moved to reopen in July 2015; the IJ excused the untimely filing due to ineffective assistance but found no "exceptional circumstances" to rescind the in absentia order; the BIA affirmed. The petitioner sought judicial review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether "exceptional circumstances" justified rescission of an in absentia removal order	Murillo-Robles: ineffective assistance plus only minor tardiness converted into removal; totality of circumstances warrants reopening	Government: notice was clear; tardiness not excused; no exceptional circumstances shown	Court: BIA abused discretion—failed to weigh counsel’s role and minor tardiness; remand to set aside in absentia order and reopen
Whether ineffective assistance of counsel can constitute an exceptional circumstance	Murillo-Robles: counsel’s failure to notify IJ or to file the promised motion prejudiced his opportunity to be heard	Government: the late arrival itself, not counsel, was dispositive given clear notice	Court: ineffective assistance may be exceptional; here counsel’s failures materially contributed and warranted weight in totality analysis
Whether minor tardiness should be equated with failure to appear	Murillo-Robles: 30-minute delay amid history of timely appearances is minor and should be excused	Government: notice showed 8:00 a.m.; absence at call supports in absentia order	Court: BIA erred by not distinguishing minor tardiness from total nonappearance; tardiness should be given weight
Whether the BIA abused discretion in denying reopening under totality-of-circumstances	Murillo-Robles: cumulative attorney errors, strength of underlying claim, and lack of intent to delay justify reopening	Government: procedural rules and clear notice support denial	Court: BIA neglected salient factors and misweighed them; abused discretion; remand with instructions to reopen

Key Cases Cited

Wan v. Holder, 776 F.3d 52 (1st Cir.) (discussing review of BIA decisions)
Carter v. INS, 90 F.3d 14 (1st Cir.) (BIA has broad but not unlimited discretion)
Henry v. INS, 74 F.3d 1 (1st Cir.) (ways BIA may abuse discretion)
White v. INS, 17 F.3d 475 (1st Cir.) (improper consideration of factors may constitute abuse)
Vaz Dos Reis v. Holder, 606 F.3d 1 (1st Cir.) (ineffective assistance can be an exceptional circumstance)
Saakian v. INS, 252 F.3d 21 (1st Cir.) (ineffective assistance standard in removal proceedings)
Jerezano v. INS, 169 F.3d 613 (9th Cir.) (courts typically give tardy litigants another chance)
Kaweesa v. Gonzales, 450 F.3d 62 (1st Cir.) (totality-of-circumstances and strength of underlying claim considerations)
Herbert v. Ashcroft, 325 F.3d 68 (1st Cir.) (exceptional-circumstances standard aims to prevent strategic absences)
Perez v. Mukasey, 516 F.3d 770 (9th Cir.) (tardiness treated as nonappearance in some circuits)
Abu Hasirah v. U.S. Dep't of Homeland Sec., 478 F.3d 474 (2d Cir.) (tardiness treated as nonappearance)
Cabrera-Perez v. Gonzales, 456 F.3d 109 (3d Cir.) (same)
Alarcon-Chavez v. Gonzales, 403 F.3d 343 (5th Cir.) (same)
Charuc v. Holder, 737 F.3d 113 (1st Cir.) (BIA's sua sponte reopening authority is unreviewable)