United States Second Circuit

Denial of motions to rescind an in absentia removal order and to reopen removal proceedings on the basis of new evidence is vacated as the IJ erred: 1) in denying petitioner's motion to rescind by failing to explain why he had not rebutted the presumption that he received notice of his removal hearing and by improperly applying this presumption in evaluating his claim that exceptional circumstances prevented him from appearing at his hearing; and 2) in denying petitioner's motion to reopen because he failed to explain why he was not prima facie eligible to remove the conditional basis of his permanent resident status, or why his divorce, which did not become final until after his removal hearing, did not constitute new evidence.

Appellate Information

• Decided 12/14/2006
• Published 12/15/2006

Judges

• SOTOMAYOR, Circuit Judge., Before:  STRAUB, SOTOMAYOR and KATZMANN, Circuit Judges.

Court

• United States Second Circuit

Counsel

• For Appellant:
  
• Eric W. Schultz, Sacks, Kolken & Schultz, Buffalo, NY, for petitioner.


• For Appellees:
  
• Mary K. Roach, Assistant United States Attorney (Kathleen M. Mehltretter, Acting United States Attorney for the Western District of New York, on the brief), Buffalo, NY, for respondents.