Common Sense from the BIA

The Board of Immigration Appeals has just issued a new decision that brings some common sense to the issue of deporting someone because they failed to attend a hearing as a result of being in State or Federal custody.

The Immigration Judge ruled that because the individual was arrested and jailed that it was his own fault for being unable to attend his Immigration Court hearing.

The Board looked to clarify the "no fault of their own" language by ruling that:

The conduct underlying an alien’s arrest and incarceration does not constitute “fault” within the meaning of section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2006), which provides that an order of removal issued at a hearing conducted in absentia may be rescinded if the alien was in Federal or State custody at the time of the scheduled hearing and the failure to appear was “through no fault of the alien.”

See Matter of Jean Robert EVRA, 25 I&N Dec. 79 (BIA 2009)

Congrats to Linda Osberg-Braun, Esq., out of Miami, Florida on the win!