Dorna Miller v. Jefferson Sessions

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DORNA ALICIA MILLER, No. 15-72645 Petitioner, Agency No. v. A097-344-335 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 15, 2018 San Francisco, California Filed May 8, 2018 Before: Paul J. Watford and Michelle T. Friedland, Circuit Judges, and Jed S. Rakoff,* Senior District Judge. Opinion by Judge Watford * The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation. 2 MILLER V. SESSIONS SUMMARY** Immigration The panel granted Dorna Alicia Miller’s petition for review of a decision of the Board of Immigration Appeals and remanded, holding that 8 U.S.C. § 1231(a)(5), which governs reinstatement of removal orders, does not deprive an immigration court of jurisdiction to resolve a motion to reopen a removal order issued in absentia, where the motion is based on a claim of lack of notice of the individual’s removal hearing. The case required the panel to interpret the interplay between two provisions of the Immigration and Nationality Act. One provision, 8 U.S.C. § 1229a(b)(5), authorizes immigration judges to order non-citizens removed from the country in absentia under certain circumstances, but also provides a fail-safe mechanism: If the individual can show that she never received notice of the hearing, she may seek to rescind a removal order entered in absentia by filing a motion to reopen “at any time.” § 1229a(b)(5)(C)(ii). The other provision at issue, 8 U.S.C. § 1231(a)(5), applies to non-citizens who are ordered removed, leave the United States while under the order of removal, and reenter the country illegally. In that scenario, the Department of Homeland Security may reinstate the prior removal order through a summary proceeding that does not involve a hearing before an immigration judge. The provision also ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MILLER V. SESSIONS 3 states that when an order is reinstated, the prior removal order “is not subject to being reopened or reviewed.” After Miller was ordered removed in absentia in 2004, she was apprehended attempting to reenter the United States, and the DHS reinstated her 2004 removal order. After expressing a fear of returning to El Salvador during her reinstatement proceedings, her case was referred to an immigration judge, who granted withholding of removal. Miller then filed a motion to reopen seeking to rescind her 2004 order so that she could seek asylum, which confers a broader set of rights than withholding of removal and is not available during reinstatement proceedings. Citing § 1231(a)(5), the immigration judge denied Miller’s motion on the ground that he lacked jurisdiction to consider it, and the BIA affirmed. As a threshold matter, the panel held that it had jurisdiction to consider whether Miller could seek rescission based on lack of notice, rejecting the government’s ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals