Divided appeals court upholds second chance at challenging deportation

REUTERS/Lucy Nicholson
  • Ruling allowed people to challenge deportation after missing court
  • Dissent says immigration courts will be slammed with requests to reopen cases

(Reuters) - A sharply divided U.S. appeals court has rejected the government's call to reconsider a ruling allowing some individuals who are ordered deported after missing multiple immigration court hearings to reopen their cases.

In a 9-8 vote on Tuesday, the full 5th U.S. Circuit Court of Appeals denied en banc review of the September decision, which said the government's failure to provide adequate notice of immigration proceedings can justify reopening deportation cases, even for people who failed to show up for court.

The ruling extended the reasoning from a U.S. Supreme Court decision from last year in Niz-Chavez v. Garland, which said federal law requires that all relevant details for a notice to appear in immigration court be included in one document. The court rejected the government's common practice of sending the information across multiple documents.

The justices left open whether their reasoning applied to cases where deportation is ordered in absentia, or after individuals failed to attend court. The 5th and 9th Circuits have since said that it does, but the Board of Immigration Appeals disagreed in a January decision.

The Biden administration in seeking en banc review from the 5th Circuit argued that the law providing for deportation in absentia was distinct from the one the Supreme Court considered in Niz-Chavez that deals with notices to appear.

In an opinion concurring with the majority on Tuesday, 5th Circuit Judge Kyle Duncan said minor differences in the wording of the laws did not compel a different result.

Writing for the dissent, Circuit Judge Jennifer Walker Elrod said the law surrounding appearance notices was less exacting with respect to in absentia deportation. She said Niz-Chavez had triggered a flood of motions to reopen cases, and the 5th Circuit ruling would have a similar effect.

The decision came in the case of Marcelo Eugenio Rodriguez, a citizen of Uruguay who said he missed deportation proceedings because notices sent by the government were mailed to an old address.

Raed Gonzalez, a lawyer for Rodriguez, did not immediately respond to a request for comment.

The case is Rodriguez v. Garland, 5th U.S. Circuit Court of Appeals, No. 20-60008.

For Rodriguez: Raed Gonzalez of Gonzalez Olivieri

For the government: Allison Frayer of the U.S. Department of Justice

Read more:

U.S. Supreme Court hands victory to immigrants facing deportation

Appeals courts must reconsider deportation cases after immigrant-friendly ruling - SCOTUS

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.