Singh v. Garland: The Ninth Circuit’s Latest on In Absentia Removal

On February 4, 2022 the Ninth Circuit decided Singh v. Garland, (No. 20-70050). 

The panel consisted of M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Donald W. Molloy, District Judge. The oral argument can be heard here.

In this case, Varinder Singh argued that he did not receive the statutorily required notice under § 1229(a) because his Notice to Appear did not provide the date and time of his hearing. In seeking to rescind the prior in absentia order, he relied on Pereira v. Sessions, 138 S. Ct. 2105 (2018), which held that a Notice to Appear without the time and date of the proceedings is not a Notice to Appear under the statute.

The immigration court denied the motion to reopen, and the BIA affirmed, finding that the subsequent provision of a notice with the time and date cured the problem.

The Ninth Circuit disagreed, finding that the reasoning below was in conflict with the statutory text of the INA and the Supreme Court’s Pereira decision, as well as Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). As the court explained:

The Supreme Court’s decisions in Pereira and Niz-Chavez, along with the text and structure of the statutory provisions governing in absentia removal orders and Notices to Appear, unambiguously required the government to provide Singh with a Notice to Appear as a single document that included all the information set forth in 8 U.S.C. § 1229(a)(1), including the time and date of the removal proceedings. Because the government did not provide Singh with statutorily compliant notice before his removal hearing, Singh’s in absentia removal order is subject to recission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii).

Here and here are earlier posts on the blog discussing the evolving caselaw on in absentia removal.

IE