Friday, November 13, 2009

Matter of EVRA, 25 I&N Dec. 79 (BIA 2009) - In absentia order of removal may be rescinded if alien was in state or Federal custody regardless of underlying conduct that resulted in arrest

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

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§ 1229a(b)(5)(C)(ii) (2006), which provides that an order of removal issued at a hearing conducted in absentia may be rescinded if the alien was in Federal or State custody at the time of the scheduled hearing and the failure to appear was “through no fault of the alien.”

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