April 4, 2019
Petitions for Review of Orders of the Board of Immigration
Appeals. No. A099-025-839
Ripple, Hamilton, and St. Eve, Circuit Judges.
Eve, Circuit Judge.
Vyloha, a citizen of the Czech Republic, brings two petitions
for judicial review in this consolidated appeal. About ten
years after an Immigration Judge (IJ) ordered Vyloha removed
in absentia in 2007, Vyloha moved to rescind the
order and reopen his case. See 8 U.S.C. §
l229a(b)(5)(C). An IJ denied that motion and the subsequent
motion to reconsider, and we conclude that the Board of
Immigration Appeals did not abuse its discretion in affirming
the IJ. We thus deny Vyloha's first petition for review.
also seeks judicial review of the Board's decision
rejecting his subject-matter jurisdiction argument based on
the Supreme Court's June 2018 decision in Pereira v.
Sessions, 138 S.Ct. 2105 (2018). Because Vyloha's
argument is foreclosed by our recent decision in
Ortiz-Santiago v. Ban, 924 F.3d 956 (7th Cir. 2019),
we also deny his second petition for review.
entered the United States in 1998 as a nonimmigrant visitor
and overstayed his visa. The United States Department of
Homeland Security (DHS) was alerted to Vyloha's presence
in the United States in June 2006 after he was convicted of
driving under the influence in Illinois. In August 2006, DHS
served Vyloha in person with a Notice to Appear (Notice),
which indicated that he would be ordered to appear before an
IJ in Chicago on a date and time to be set in the future. The
Notice charged Vyloha with removability because he overstayed
his non-immigrant visa. See 8 U.S.C. §
days later, a notice of hearing was mailed to Vyloha's
attorney setting the hearing date for August 21, 2006.
Several other hearing notices followed. On October 13, 2006,
Vyloha appeared before the IJ in person for his scheduled
removal hearing and presented a letter from his counsel
explaining that he was out of the country and requesting that
the IJ reschedule the matter to November 2006. At the October
2006 hearing, Vyloha indicated that he preferred to proceed
in English. After confirming that Vyloha was comfortable
proceeding in English, the IJ conducted the hearing and
personally served Vyloha with notice that his rescheduled
removal hearing was set for May 2007. In addition, the IJ
orally informed Vyloha of the hearing's time and warned
him about the consequences of failing to appear. Vyloha
nonetheless did not appear at the May 2007 removal hearing.
Consequently, the IJ found him removable as charged and
ordered him removed in absentia.
after his May 2007 hearing, police arrested Vyloha for
driving with a suspended driver's license. While serving
a 31-day sentence for that offense, Vyloha learned that there
was an Immigration and Customs Enforcement (ICE) detainer on
him. Vyloha asserts that because ICE did not take him into
custody at the conclusion of his sentence, he assumed his
attorney had resolved his immigration problems.
ten years later, in September 2017, ICE apprehended and
detained Vyloha. He then filed a motion to reopen his
immigration proceedings and to rescind the in
absentia order pursuant to 8 U.S.C. §
l229a(b)(5)(C). Vyloha claimed he had no notice of the May
2007 hearing due to his limited English proficiency. He
further asserted there was an exceptional circumstance to
reopen his case based on his counsel's ineffectiveness in
failing to tell him about his hearing date. In the
alternative, Vyloha asked the IJ to exercise its sua
sponte authority to reopen his immigration proceedings
based on his lack of notice and counsel's
November 2017, the IJ denied Vyloha's motion to reopen
reasoning that Vyloha had notice of his removal hearing. The
IJ noted that the first IJ had personally served Vyloha with
notice of his May 2007 hearing, and, under Seventh Circuit
law, personal service in English to a non-English speaker
typically satisfies due process because the alien is on
notice that further inquiry is needed. The IJ also concluded
that Vyloha did not establish that counsel's performance
prejudiced him because he directly received notice of his
removal hearing both orally and in writing. Finally, the IJ
concluded that the motion to reopen and rescind was untimely,
and that Vyloha had not established equitable tolling because
of his lack of due diligence.
filed a motion to reconsider arguing that the IJ did not
consider his request to reopen his proceedings sua
sponte so that he could apply for the adjustment of his
status. In December 2017, the IJ denied the motion and noted
that sua sponte authority is an extraordinary remedy
reserved for exceptional circumstances. Vyloha did not meet
this standard, according to the IJ, especially because he had
waited ten years before seeking to reopen.
appealed the IJ's denial of his motion to reconsider. In
May 2018, the Board affirmed and dismissed the appeal. The
Board concluded that Vyloha's lack of notice argument
failed because he was personally served with written and oral
notice of his May 2007 hearing, which sufficed despite any
English language deficiencies. Further, the Board noted that
Vyloha's motion to reopen was untimely and that Vyloha
had failed to establish that equitable tolling applied given
his lack of due diligence in seeking ...