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Vyloha v. Barr

United States Court of Appeals, Seventh Circuit

July 10, 2019

Jiri Vyloha, Petitioner,
William P. Barr, Attorney General of the United States, Respondent.

          Argued April 4, 2019

          Petitions for Review of Orders of the Board of Immigration Appeals. No. A099-025-839

          Before Ripple, Hamilton, and St. Eve, Circuit Judges.

          St. Eve, Circuit Judge.

         Jiri 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.

         Vyloha 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.[1]


         Vyloha 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. § 1227(a)(1)(B).

         Two 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.

         Shortly 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.

         Approximately 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 ineffectiveness.

         In 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.

         Vyloha 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.

         Vyloha 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 ...

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