Noncitizens can reopen removal orders by proving either (1) they didn’t receive notice of their missed hearing or (2) exceptional circumstances prevented their attendance. In Campos-Chaves v. Garland (2024), the Supreme Court narrowed the lack of notice claims, ruling that noncitizens cannot argue inadequate notice solely because their Notice to Appear did not include the date and time, provided they received a separate notice with that information before the hearing. 

Campos-Chaves consolidated three appeals—two from the Fifth Circuit and one from the Ninth Circuit. As a result, the Supreme Court vacated and remanded Singh v. Garland to the Ninth Circuit to assess whether, in the alternative, exceptional circumstances prevented Mr. Singh from attending his hearing.

On September 17, 2024, the Ninth Circuit found that the Board of Immigration Appeals (BIA) did not adequately address Mr. Singh’s claims regarding exceptional circumstances. The panel granted his petition for review and emphasized that “exceptional circumstances,” as defined in 8 U.S.C. § 1229a(e)(1), INA § 240(e)(1), is broad and not exhaustive. Citing previous Ninth Circuit decisions, the court highlighted that exceptional circumstances are inherently unique, requiring an examination of the “particularized facts” and the “totality of the circumstances” in each case. Specifically, the court noted: “Assessing the totality of the circumstances requires examining the petitioner’s motive, diligence in his attempts to attend the hearing, and any external impediments over which he had no control.”

Applying this standard, the court identified several key factors the Board overlooked: (1) the merits of Mr. Singh’s case, which could lead to unjust deportation despite his eligibility for relief; (2) the rescheduling of the missed hearing; and (3) his reliance on his attorney’s communication regarding the hearing date.

The Singh court also reaffirmed that the factors from Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), related to ineffective assistance of counsel (IAC), are not rigidly applied. When seeking reopening based on exceptional circumstances, substantial compliance with Lozada factors is not required for considering an attorney’s involvement, as IAC and exceptional circumstances are independent grounds for reopening.

Above all, this case underscores that moving for reopening and rescission of an in absentia removal order is not a one-size-fits-all approach. Instead, noncitizens, and their counsel, should carefully and comprehensively articulate the specific exceptional circumstances that prevented their attendance at any hearing.

Read the full decision here.