Calle-Yanza v. Garland

Case: 20-60834 Document: 00516423394 Page: 1 Date Filed: 08/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 8, 2022
No. 20-60834
Lyle W. Cayce
Clerk
Miguel Angel Calle-Yanza,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A071 524 146
Before Richman, Chief Judge, and Wiener and Willett, Circuit
Judges.
Per Curiam:*
Miguel Angel Calle-Yanza asserts that the Board of Immigration
Appeals (BIA) abused its discretion by denying his motion to reopen his
immigration proceedings after an Immigration Judge (IJ) entered an in
absentia order of deportation. He claims that he did not receive notice of his
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-60834
hearing because the immigration court’s correspondence was mailed to an
attorney who did not represent him. The BIA applied § 242B (New § 242B)
of the Immigration and Nationality Act (INA). 1 Calle-Yanza asserts that the
BIA should have applied § 242(b) (Old § 242(b)) because his order to show
cause was issued before New § 242B went into effect. 2 We agree, and we
therefore grant Calle-Yanza’s petition for review, vacate the BIA’s decision,
and remand this case with instructions to reevaluate Calle-Yanza’s motion
under Old § 242(b).
I
This case turns on which version of the statute applies to Calle-
Yanza’s immigration proceedings: New § 242B or Old § 242(b). We begin
by reviewing the differences between the two versions, then we discuss the
facts and procedural history of Calle-Yanza’s case.
A
Before the Immigration Act of 1990, Old § 242(b) governed
deportation proceedings. 3 It provided that an “alien shall be given notice,
reasonable under all the circumstances, of the nature of the charges against
him and of the time and place at which the proceedings will be held.” 4 It
further provided for an in absentia deportation order “[i]f any alien has been
given a reasonable opportunity to be present at a [deportation] proceeding”
1
8 U.S.C. § 1252b (Supp. II 1990). Congress has since repealed this provision.
Maradia v. Garland, 18 F.4th 458, 462 (5th Cir. 2021); see also Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996).
2
See 8 U.S.C. § 1252(b) (1988).
3
In re Cruz-Garcia, 22 I. & N. Dec. 1155, 1156 n.1 (BIA 1999).
4
§ 1252(b)(1).
2
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and “without reasonable cause fails or refuses to attend.” 5 An alien could
move at any time to reopen an in absentia order if he could establish
“reasonable cause” for his absence. 6
In 1990, Congress “significantly amended” the INA. 7 The
amendments left Old § 242(b) intact but added New § 242B, which altered
the statutory framework. 8 New § 242B required the Attorney General to
provide an alien with a written order to show cause in person or through
service by certified mail to the alien or his counsel of record. 9 The order to
show cause was required to inform a non-detained alien that: he must
immediately provide the Attorney General with an address and telephone
number at which he may be contacted; he must immediately advise the
Attorney General of any changes in his contact information; and, if he failed
to do so, written notice of the time and place of his deportation proceedings
would not be required. 10 If the alien provided his contact information, the
government had to provide written notice of the time and place of any
proceedings and the penalties for failing to appear. 11 If an alien failed to
attend his deportation hearing, the IJ was required to order him deported in
absentia should it be established by “clear, unequivocal, and convincing
5
§ 1252(b); see Williams-Igwonobe v. Gonzales, 437 F.3d 453, 455 (5th Cir. 2006).
6
§ 1252(b); see Rodriguez-Manzano v. Holder, 666 F.3d 948, 952-53 (5th Cir. 2012).
7
de Morales v. INS, 116 F.3d 145, 147 (5th Cir. 1977).
8
Id.9
8 U.S.C. § 1252b(a)(1) (Supp. II 1990); see Ramos-Portillo v. Barr, 919 F.3d 955,
959 (5th Cir. 2019).
10
§ 1252b(a)(1); see Ramos-Portillo, 919 F.3d at 959.
11
§ 1252b(a)(2)(A)-(B), (c)(2); see Ramos-Portillo, 919 F.3d at 959.
3
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evidence that the written notice was so provided and that the alien [wa]s
deportable.” 12
The 1990 amendments further provided that a deportation order
entered in absentia against an alien could be rescinded only “upon a motion
to reopen filed within 180 days after the date of the order of deportation if the
alien demonstrate[d] that the failure to appear was because of exceptional
circumstances,” or “upon a motion to reopen filed at any time if the alien
demonstrate[d] that the alien did not receive notice in accordance with [the
requirements of New § 242B].” 13 It defined “exceptional circumstances” as
“circumstances (such as serious illness of the alien or death of an immediate
relative of the alien, but not including less compelling circumstances) beyond
the control of the alien.” 14
In sum, New § 242B changed the statutory regime in two ways that
are relevant here: it introduced a 180-day time limit on filing motions to
reopen, and it replaced the “reasonable cause” standard with the
“exceptional circumstances” standard.
Congress did not specify when the new procedures in the 1990
amendments to the INA would take effect, leaving it to “a date specified by
the Attorney General.” 15 The Attorney General repeatedly delayed the
effective date “in order to allow additional time to implement the notice
12
§ 1252b(c)(1).
13
§ 1252b(c)(3)(A)-(B).
14
§ 1252b(f)(2).
15
See Pub. L. No. 101-649, § 545(g), 104 Stat. 4978, 5066 (1990); see also Lahmidi
v. INS, 149 F.3d 1011, 1013 (9th Cir. 1998).
4
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requirement.” 16 New § 242B ultimately took effect on June 13, 1992. 17 The
Attorney General, however, “did not specify whether [New] § 242B would
apply to proceedings in which an order to show cause had already issued or
only to proceedings that had not yet been initiated.” 18
B
Calle-Yanza, a native and citizen of Ecuador, entered the United
States without inspection. On June 3, 1992, before New § 242B went into
effect, immigration authorities detained Calle-Yanza and issued him an order
to show cause charging him with deportability. The order directed Calle-
Yanza to appear before an IJ “at [a] time and date to be set later,” and it
advised him that “[f]ailure to attend the hearing at the time and place
designated hereon may result in a determination being made by the [IJ] in
your absence.” On June 11, 1992, Mike Herrera entered his appearance as
Calle-Yanza’s counsel of record in a “Deportation (Including Bond
Redetermination)” proceeding. Several days later, Calle-Yanza was released
from detention on bond.
On July 28, 1992, after New § 242B went into effect, the IJ sent
Herrera a notice of hearing via certified mail. The immigration court
scheduled Calle-Yanza’s hearing for August 10, 1992. The notice of hearing
warned Calle-Yanza that his failure to appear in the absence of “exceptional
circumstances” may result in an in absentia deportation order, referencing
New § 242B’s language. Although the certified mail was delivered, neither
Herrera nor Calle-Yanza appeared at the hearing. The IJ determined that
16
Delay of Effective Date of Notice-Related Provisions of Section 242B of the
Immigration and Nationality Act, 57 Fed. Reg. 5180-03, 5180 (Feb. 12, 1992).
17
Id. at 5180-81.
18
Lahmidi, 149 F.3d at 1013.
5
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Calle-Yanza was properly notified and, applying Old § 242(b), determined
that he did not provide “reasonable cause” for his failure to attend. The IJ
conducted the hearing in his absence and ordered Calle-Yanza deported. In
a letter to Herrera, the IJ notified Calle-Yanza of its decision and his right to
appeal, but no appeal was filed.
Nineteen years later, in December 2011, Calle-Yanza retained new
counsel, Benjamin Bratter, and filed a motion to reopen his proceedings and
rescind his in absentia deportation order. He argued that his failure to appear
at his 1992 deportation hearing was due to ineffective assistance of counsel
from two other attorneys, Eloy Arcia and Zvi Samuels, whom he had hired to
represent him at his deportation proceedings. The motion explained that
Calle-Yanza’s failure to appear at his 1992 hearing “was through no fault of
his own but rather a direct result of [his] previous attorney’s incompetence.”
The motion did not mention Herrera, nor did Calle-Yanza’s attached
affidavit. The IJ denied the motion. Applying New § 242B, the court
concluded that the immigration court properly notified Calle-Yanza about his
hearing because the notice of hearing was sent by certified mail to Herrera.
To the extent that Calle-Yanza was arguing that Herrera did not provide him
with that notice, the IJ determined that such a claim of “exceptional
circumstances” was untimely because it needed to be filed within 180 days
of the in absentia order.
The BIA dismissed Calle-Yanza’s appeal in May 2012. Applying
New § 242B, the Board agreed with the IJ that Calle-Yanza failed to establish
either lack of notice or “exceptional circumstances” excusing his failure to
appear. Calle-Yanza’s counsel had argued in his appellate brief that his client
never hired Herrera, but the BIA refused to give evidentiary weight to that
assertion because Calle-Yanza did not make that assertion in his affidavit.
The Board further reasoned that even if it were to accept the assertion, Calle-
Yanza “d[id] not provide any details or make any further assertions regarding
6
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the actions of [Herrera]” apart from arguing that his failure to appear “was
the direct result of his previous attorney’s incompetence.”
Several years later, in 2018, Calle-Yanza filed a second motion to
reopen. For the first time, Calle-Yanza personally asserted in an affidavit that
Herrera did not represent him in his deportation proceedings. He argued
that he was not notified of his 1992 deportation hearing because the notice of
hearing was sent to Herrera, who “only represented him in bond
proceedings.” He also argued that he was not subject to time limitations on
his motion to reopen nor the “exceptional circumstances” standard because
his order to show cause was issued before the effective date of New § 242B.
The BIA ruled on the motion in July 2019. The BIA construed Calle-
Yanza’s filing as a motion for reconsideration of its 2012 decision “[t]o the
extent” that Calle-Yanza sought to have his 1992 in absentia order rescinded.
It denied the motion as untimely.
Calle-Yanza appealed to this court. The Government filed an
unopposed motion to remand the case so the BIA could “have the
opportunity to reevaluate its decision construing [Calle-Yanza]’s motion to
be a motion to reconsider and denying it as untimely, given that there are no
time or numerical limitations for a motion to reopen a deportation order
entered in absentia based on a lack of notice.” We granted the motion.
On remand, the BIA vacated its July 2019 decision but again
construed Calle-Yanza’s motion to reopen as an untimely motion to
reconsider its May 2012 decision. Despite the time bar, it decided to consider
the motion on the merits sua sponte. The Board determined that New
§ 242B governed Calle-Yanza’s deportation proceedings because his notice
of hearing was mailed after the provision’s effective date. It rejected Calle-
Yanza’s assertion that Herrera did not represent him during the proceedings
as “belied by the record.” It also concluded that Calle-Yanza did not make a
7
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valid ineffective-assistance-of-counsel claim. Lastly, the Board determined
that even if Calle-Yanza had raised a valid ineffective-assistance-of-counsel
claim, “the motion to reopen is untimely because it was filed more than 180
days after the August 10, 1992, deportation order,” and the due diligence
required to warrant equitable tolling had not been shown. This appeal
followed.
II
Calle-Yanza presses two arguments. First, he asserts that the BIA
erred when it construed his 2018 motion to reopen his deportation
proceedings as an untimely motion to reconsider the BIA’s 2012 decision.
Second, he argues that the BIA abused its discretion by erroneously applying
New § 242B to his motion instead of Old § 242(b).
A
“‘Motions to reopen deportation proceedings are disfavored,’ and the
party seeking relief has a heavy burden.” 19 “We review ‘the denial of a
motion to reopen under the highly deferential abuse-of-discretion
standard.’” 20 Under this standard, “[t]he BIA ‘abuses its discretion’ when
it ‘issues a decision that is capricious, irrational, utterly without foundation
in the evidence, based on legally erroneous interpretations of statutes or
regulations, or based on unexplained departures from regulations or
established policies.’” 21 We review questions of law de novo, but we will
defer to the BIA’s interpretations of immigration statutes and regulations
“unless the record reveals compelling evidence that the BIA’s interpretation
19
Mendias-Mendoza v. Sessions, 877 F.3d 223, 226 (5th Cir. 2017) (quoting
Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549-50 (5th Cir. 2006)).
20
Id. (quoting Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014)).
21
Id. at 227 (quoting Barrios-Cantarero, 772 F.3d at 1021).
8
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is incorrect.” 22 “Though our review is generally limited to the BIA’s
decision, we may also review the IJ’s decision when it influences the BIA’s
decision or where the BIA has adopted all or part of the IJ’s reasoning.” 23
A motion to reopen and a motion to reconsider are two “separate and
distinct motions with different requirements.” 24 A motion to reopen “seeks
to introduce new evidence.” 25 It “allows reopening at a later date based on
new facts, supported by affidavits or other evidentiary material.” 26 A motion
to reconsider, on the other hand, must “identify a change in the law, a
misapplication of the law, or an aspect of the case that the BIA
overlooked.” 27 It “urges an adjudicative body to re-evaluate the record
evidence only.” 28 Unlike the relatively generous time limits for filing
motions to reopen that we discussed above, a motion to reconsider must be
filed within thirty days after the mailing of the challenged Board decision. 29
When determining whether a motion is one to reopen, reconsider, or a
22
Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009); see also Vetcher v.
Barr, 953 F.3d 361, 366 (5th Cir. 2020).
23
Vetcher, 953 F.3d at 366.
24
Pierre v. INS, 932 F.2d 418, 421 (5th Cir. 1991), overruled on other grounds by Stone
v. INS., 514 U.S. 386 (1995) (quoting Sanchez v. INS, 707 F.2d 1523, 1529 (D.C. Cir. 1983)).
25
Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005).
26
Gonzalez Hernandez v. Garland, 9 F. 4th 278, 285 (5th Cir. 2021) (internal
quotation marks and citation omitted), petition for cert. filed (U.S. Mar. 31, 2022) (No. 21-
1323).
27
Zhao, 404 F.3d at 301.
28
Id.29
See 8 C.F.R. § 1003.2(b)(2), (c)(2).
9
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combination of both, we examine the motion’s substance, not simply its
label. 30
Here, Calle-Yanza filed a second motion to reopen in 2018, seeking to
reopen his proceedings and rescind his in absentia deportation order. The
BIA construed the filing as an untimely motion to reconsider the BIA’s 2012
denial of his initial motion to reopen. But the motion included new factual
evidence. For the first time, Calle-Yanza personally asserted in an affidavit
that his initial attorney, Herrera, did not represent him in his deportation
proceedings and did not contact him after his release. Calle-Yanza’s
appellate attorney had made a similar assertion about Herrera in his 2012
briefing to the BIA, but the Board declined to give it evidentiary weight.
Because Calle-Yanza introduced new evidence, his motion was one to reopen
his deportation proceedings. 31 We therefore turn to the question whether the
motion to reopen is untimely, which turns on whether Old § 242(b) or New
§ 242B governs Calle-Yanza’s immigration proceedings.
B
Calle-Yanza argues that the BIA abused its discretion by applying the
wrong statute when it considered his motion. The BIA applied New § 242B,
which became effective on June 13, 1992, instead of Old § 242(b). Calle-
Yanza’s order to show cause was issued on June 2, 1992, before New § 242B
went into effect, but he received his notice of hearing after the amendment
became law. The Government asserts that the BIA’s application of New
§ 242B was correct. Although Calle-Yanza’s order to show cause was issued
30
See Zhao, 404 F.3d at 301; Pierre v. INS, 932 F.2d 418, 421-22 (5th Cir. 1991).
31
See Zhao, 404 F.3d at 301.
10
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before June 13, 1992, the Government contends that the subsequent notice of
hearing made it appropriate to apply New § 242B.
We have addressed the applicability of New § 242B versus Old
§ 242(b) before, but not in a case with the unique timeline presented here. In
de Morales v. INS, 32 we stated that “[t]he amended statute applies if notice of
the hearing was provided after June 13, 1992.” 33 But, unlike here, that case
involved an order to show cause and a notice of hearing that were both issued
after June 13, 1992. 34 Additionally, in Rodriguez-Manzano v. Holder, 35 we
explained that the “post-1992 regulations imposing timing requirements on
motions to reopen deportation proceedings do not apply retroactively to
motions to reopen deportation proceedings commencing before 1992.” 36
That case involved an order to show cause and a notice of hearing that were
both issued before June 13, 1992. 37
The BIA has decided at least one case with a similar timeline to the
one here. In In re Grijalva-Barrera, 38 an order to show cause was issued
before June 13, 1992, but the alien’s hearing was held on March 1, 1993, after
the effective date, though it is unclear when the alien received a notice of
hearing. 39 The BIA applied New § 242B, but it gave no explanation as to
32
116 F.3d 145 (5th Cir. 1997).
33
Id. at 147 n.4.
34
Id. at 146, 147 n.4.
35
666 F.3d 948 (5th Cir. 2012).
36
Id. at 952, 954 (citing In re Cruz-Garcia, 22 I. & N. Dec. 1155, 1159 (BIA 1999)).
37
Id. at 954.
38
21 I. & N. Dec. 472 (BIA 1996).
39
Id. at 472.
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why. 40 In other cases, the BIA has provided some clarity on when New
§ 242B is applicable. It has stated without discussion that “[d]eportation
proceedings involving notices of hearing issued between June 13, 1992 and
March 31, 1997, [are] governed by section 242B of the Act.” 41 But those
cases did not involve the unique timeline at issue here, in which the order to
show cause was issued before June 13, 1992 and the notice of hearing was
issued after. 42 Moreover, we have previously interpreted the BIA’s holding
in these cases to mean that “post-1992 regulations . . . do not apply
retroactively to motions to reopen . . . commencing before 1992.” 43 Applied
to the unique timeline here, our reading of the BIA’s cases would require the
application of Old § 242(b) because Calle-Yanza’s proceedings commenced
on June 3, 1992. But the plain language of the BIA’s decisions would require
the application of New § 242B because Calle-Yanza’s notice of hearing was
issued on July 18, 1992.
Turning to our sister circuits, one court has addressed the precise
statutory construction issue raised by the timeline in this case. 44 In Lahmidi
v. INS, 45 the Ninth Circuit engaged in an exhaustive review of the statutory
framework and concluded that Old § 242(b) applies when an order to show
cause was issued before June 13, 1992, even if a notice of hearing is sent
40
See id. at 473-74.
41
Cruz-Garcia, 22 I. & N. Dec. at 1156 n.1; see also In re Mancera-Monroy, 22 I. &
N. Dec. 79, 80 n.1 (BIA 1998) (stating the same).
42
Cruz-Garcia, 22 I. & N. Dec. at 1156; Mancera-Monroy, 22 I. &. N. Dec. at 80-81.
43
Rodriguez-Manzano v. Holder, 666 F.3d 948, 952 (5th Cir. 2012) (emphasis
added) (citing Cruz-Garcia, 22 I. & N. Dec. at 1159).
44
Lahmidi v. INS, 149 F.3d 1011, 1014-16 (9th Cir. 1998); see also Avalos-Cieza v.
Holder, 449 F. App’x 898, 901 (11th Cir. 2011) (per curiam) (unpublished) (agreeing with
the reasoning in Lahmidi in an unpublished opinion).
45
149 F.3d 1011.
12
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after. 46 Looking first at the plain language of the implementing statute, the
court reasoned that “Congress intended that all of the specified notice and
penalty procedures would be implemented on a single date set by the
Attorney General.” 47 It determined that “[t]he fact that Congress made the
effective date of [New] § 242B contingent on the implementation of [a
central address file system to provide the proper notice under New § 242B]
demonstrates that Congress intended the notice procedures to be fully
operational at the same time that the new penalties and other [New] § 242B
provisions would become effective.” 48 In other words, “Congress
contemplated . . . a single integrated procedure to be implemented
simultaneously and to be construed so as to operate as a unified whole.” 49
The Ninth Circuit then turned to the structure of New § 242B. It
reasoned that subsection (a) enhanced the notice provisions by requiring a
written order to show cause that specifies “the requirement that the alien
provide a written record of any address change, and the consequences of
failing to provide a record of address change.” 50 Subsection (a) also required
the creation of the central address file system to manage the new notice
procedures as well as a detailed notice of hearing. 51 Next, the court observed
that “subsections (c) and (e) impose strict sanctions upon an alien for failing
to appear at the deportation hearing once he has been provided with proper
46
Id. at 1016.
47
Id. at 1014.
48
Id.
49
Id.
50
Id. at 1015 (italics omitted).
51
Id.
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notice.” 52 The court therefore determined that “the notice provisions were
strengthened so that it could fairly be assumed that aliens who failed to
appear did so knowingly, and severe sanctions were then adopted premised
on the assumption that their deportation would be both fair and
appropriate.” 53 As additional support, it noted that “several of the
subsections cross-reference each other and state that their operation is
contingent one on the other.” 54 Accordingly, the court “conclude[d] that,
by making subsections (a), (c), and (e) interdependent upon each other and
effective concurrently, Congress clearly intended that the sanctions
contained in the amendment would be applied at such time as the notice
provisions had become effective and the INS had complied with their
requirements.” 55
Lastly, the Ninth Circuit examined the legislative history. The court
cautioned that the plain language of the statute controlled its decision but
maintained that the history provided further support. 56 It reasoned that
“Congress enacted both the notice and penalty provisions of [New] § 242B
to address the failure of aliens to appear at their scheduled deportation
hearings,” 57 and that “the notice provisions and the penalties would operate
together to further this single goal.” 58 As a result, “Congress intended that
52
Id.
53
Id.
54
Id.
55
Id. at 1016.
56
Id.
57
Id. (citing H.R. Rep. No. 101-955, at 132 (1990) (Conf. Rep.), as reprinted in
1990 U.S.C.C.A.N. 6784, 6797).
58
Id. (citing H.R. Rep. No. 101-681, at 150-51 (1990) (Conf. Rep.), as reprinted
in 1990 U.S.C.C.A.N. 6472, 6556-57).
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the new notice rules, including the procedures for orders to show cause and
notices of hearings, would come into effect at the same time to ensure that
any alien subject to the stricter penalties would first receive the enhanced
notice.” 59 The Ninth Circuit therefore concluded that an alien’s order to
show cause and notice of hearing both must have been issued after June 13,
1992 for New § 242B to govern an alien’s immigration proceedings. 60
Decisions from our sister circuits are of course not binding on this
court, but they are persuasive. 61 We join the Ninth Circuit in concluding that
the plain language of New § 242B indicates that the enhanced penalty
provisions should not be imposed without the protection of the new notice
requirements. As the Lahmidi court reasoned, the various subsections of
New § 242B are “inextricably intertwined.” 62 We too have observed this
interdependency. 63 Here the BIA applied New § 242B to Calle-Yanza’s
motion to reopen because his notice of hearing was issued after June 13, 1992.
But Calle-Yanza’s order to show cause was issued prior to June 13, 1992, and
therefore his immigration proceedings “commenced” before New § 242B
went into effect. 64 The BIA should have applied Old § 242(b).
59
Id.
60
Id. at 1016-17.
61
United States v. Penaloza-Carlon, 842 F.3d 863, 864 & n.1 (5th Cir. 2016) (per
curiam).
62
Lahmidi, 149 F.3d at 1015.
63
See de Morales v. INS, 116 F.3d 145, 148 (5th Cir. 1997) (“[T]he statutory scheme
as a whole contemplates that aliens subject to deportation proceedings will make reasonable
efforts to attempt to avoid the entrance of in absentia orders, and awards them for doing so
by subjecting them to a less onerous standard.”).
64
See Rodriguez-Manzano v. Holder, 666 F.3d 948, 950 (5th Cir. 2012).
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The Government attempts to distinguish Lahmidi on the basis that the
petitioner in that case never received notice of New § 242B’s requirements,
whereas Calle-Yanza was informed of those requirements in his notice of
hearing. That is correct. Nevertheless, this distinction is unpersuasive.
Congress “clearly intended” for New § 242B’s notice and penalty
provisions to go into effect on the same day. 65 Calle-Yanza’s proceedings
“commenced” on June 3, 1992, before New § 242B’s effective date, so we
conclude that the BIA abused its discretion when it concluded that Calle-
Yanza’s motion was untimely. 66 Old § 242(b) governs Calle-Yanza’s
motion, and it “set[s] no time or numerical limitations on aliens seeking to
reopen deportation proceedings conducted in absentia.” 67
* * *
We GRANT Calle-Yanza’s petition, VACATE the BIA’s decision,
and REMAND for further proceedings consistent with this opinion.
65
Lahmidi, 149 F.3d at 1016.
66
See Rodriguez-Manzano, 666 F.3d at 950.
67
See In re Cruz-Garcia, 22 I. & N. Dec. 1155, 1159 (BIA 1999).
16