PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
William P. Joyce, with whom Joyce & Associates P.C. was on brief, for petitioner.
Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice Civil Division, with whom Joyce R. Branda, Acting Assistant Attorney General, and Julie M. Iversen, Senior Litigation Counsel, were on brief, for respondent.
Before Howard, Thompson, and Barron, Circuit Judges.
THOMPSON, Circuit Judge.
Alan Soares Renaut is a Brazilian citizen who unlawfully entered the United States, was detained at the Arizona border, failed
to attend his deportation hearing, and was ordered by an immigration judge (" IJ" ) to be removed from the country. Renaut, who claims he was never notified that his removal hearing had been scheduled, asked an IJ to reopen his case. The IJ declined, and on its appellate review, the Board of Immigration Appeals (" BIA" ) affirmed the IJ's denial.
Now on appeal, Renaut argues that the IJ applied the wrong legal standard in reviewing his motion, and that when its turn came around, the BIA ignored the IJ's error and engaged in its own (impermissible) factfinding to affirm.
We agree that the IJ dropped the ball and applied the wrong legal standard in reviewing Renaut's motion (albeit a different legal error from the one Renaut identified). The BIA likewise missed by affirming the IJ based on that incorrect legal principle. Therefore, we vacate the BIA's decision and remand Renaut's case to the BIA.
The relevant facts are undisputed. Renaut is a native and citizen of Brazil who entered the United States through the Arizona-Mexico border in January 2003 without being inspected by an immigration officer. He was detained upon entry and, while detained, personally served with a Notice to Appear before the Immigration Court in Florence, Arizona, for a to-be-scheduled removal hearing. The notice charged Renaut with removability, pursuant to the Immigration and Nationality Act (" the Act" ), which provides that " [a]n alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible." 8 U.S.C. § 1182(a)(6)(A)(i). The notice also warned: " You are required to provide the [government], in writing, with your full mailing address . . . . You must notify the Immigration Court immediately by using [a change of address form] whenever you change your address . . . during the course of this proceeding."
Renaut was detained for about two months before being released from a detention facility. On March 3, 2003, he asked that his case be moved to the Boston Immigration Court. In his written motion, which was filed on his behalf by a representative, Renaut stated that " [h]earing notices and other documents may be sent to the respondent at . . . 6 Corregidor Rd." in Framingham, ...