Eleventh Circuit Finds IJ Has Jurisdiction Over In Absentia Motion to Reopen Filed From Outside of the U.S. Contreras-Rodriguez v. U.S. Attorney General. 462 F.3d 1314 (11th Cir. 2006). Petitioner was ordered removed in absentia and removed from the United States. He filed a motion to reopen to rescind the in absentia order based on lack of notice. The IJ denied the motion, concluding that the immigration court lacked jurisdiction because petitioner was outside of the United States. The BIA affirmed the dismissal. The Eleventh Circuit found that petitioners motion was governed by 8 C.F.R. 1003.23(b)(4)(ii), which says that a motion to reopen in absentia proceedings may be made at any time if the person shows that he or she did not receive notice. This regulation does not bar reopening when the person has been removed from the United States. The court noted that Patel v. United States AG, 334 F.3d 1259 (11th Cir. 2003), is in apposite. In Patel the court dismissed a petition for review of the BIAs dismissal of a motion to reopen because the person was outside of the United States. Patel, however, did not involve a motion to reopen to rescind an in absentia order.
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