United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-1584 ___________________________ Yesenia Garcia Payeras lllllllllllllllllllllPetitioner v. Jefferson B. Sessions, III, Attorney General of the United States lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: May 15, 2018 Filed: August 9, 2018 ____________ Before BENTON, KELLY, and STRAS, Circuit Judges. ____________ KELLY, Circuit Judge. Petitioner Yesenia Garcia Payeras petitions for review of an order of the Board of Immigration Appeals (BIA). After an immigration judge (IJ) denied her motion to reopen her removal proceedings and rescind its in absentia removal order, the BIA dismissed her administrative appeal. Having jurisdiction under 8 U.S.C. § 1252(a)(1), we grant the petition and remand for further proceedings. I. Background Garcia Payeras is a native and citizen of Guatemala. She and her three minor daughters sought refuge in the United States after they were threatened by gang members. In February 2015, they were paroled into the United States and released from custody. They relocated to Sioux Falls, South Dakota. In June 2015, Garcia Payeras filed an application for asylum.1 Her individual hearing date was originally scheduled for August 5, 2015, but was rescheduled for November 25, 2015. From April through September 2015, Garcia Payeras went to a Sioux Falls hospital several times complaining of worsening abdominal pain in the area of her appendix. Each time she was advised to take ibuprofen. By mid-September, the pain was so intense that she flew to Guatemala, where she underwent an emergency appendectomy on September 29, 2015. After the surgery, she went to southern Mexico and has lived there since September 30, 2015. Prior to the November hearing, Garcia Payeras’s counsel moved for Garcia Payeras to appear by telephone, but the IJ denied the request. Her counsel orally moved for a continuance during the hearing, but that was also denied. The IJ then ordered Garcia Payeras and her children be removed in absentia for failing to appear at the hearing. Garcia Payeras timely filed a motion to reopen, seeking to rescind the in absentia removal order and to reopen her asylum proceedings. She did not contest that she had received proper notice of the hearing or that she was removable. Rather, she asserted that her failure to appear was due to exceptional circumstances—her need to obtain necessary medical care outside the United States. The IJ denied the motion to reopen, concluding that, because Garcia Payeras had left the United States, 1 Her children are included as derivatives on her application. -2- the immigration court lacked jurisdiction over her in absentia motion pursuant to the “departure bar” of 8 C.F.R. § 1003.23(b)(1): “A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.” Garcia Payeras appealed, arguing that the immigration court had jurisdiction to reopen, reasserting her claim that her failure to appear was ...
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