Smykiene v. Holder

Federal 7th Circuit Court
Civil Court
Case Number: 
Nos. 12-1800 & 12-2877 Cons.
Decision Date: 
February 13, 2013
Federal District: 
Petition for Review, Order of Bd. Of Immigration Appeals
Petition granted
IJ erred in denying without conducting evidentiary hearing alien’s motion to reopen 14-year old removal proceeding under circumstances where IJ had originally ordered alien removed in absentia, and where alien filed affidavit that she never received original Notice to Appear even though Notice to Appear had been sent certified mail to address alien had given to arresting officer. Alien cannot be ordered removed without notice and opportunity to be heard, and instant alien is entitled to evidentiary hearing on issue as to whether she evaded receipt of notice where: (1) post office returned envelope containing Notice to Appear with notation “Attempted-Not Known,” as opposed to notation that alien had “refused” receipt; and (2) alien’s affidavit indicating that she did not actually receive Notice to Appear constituted some evidence of non-receipt of said Notice.