Cruz-Hernandez

MEMORANDUM

The government concedes that the Immigration Judge (IJ) erred under 8 U.S.C. § 1229a(b)(5)(A) in refusing to issue Cruz-Hernandez’s removal order in absentia, where it is undisputed that Cruz-Hernandez was not in fact present at his hearing and there is no evidence in the record that he agreed the proceedings be conducted in his absence, see 8 U.S.C. § 1229a(b)(2)(A). We agree, and therefore grant Cruz-Hernandez’s petition for review of the Board of Immigration Appeals’ (BIA) denial of Cruz-Hernandez’s motion to reopen. We remand to the BIA with directions to remand to the IJ for a new removal hearing.

Because the IJ based his determination that Cruz-Hernandez was removable on the sole ground that the Attorney General had “reason to believe” that Cruz-Hernandez had been involved in illicit trafficking in a controlled or listed substance or chemical, pursuant to 8 U.S.C. § 1182 (a)(2)(C)(i), Cruz-Hernandez’s claim that the crime for which he was indicted was not a controlled substance offense is not germane and we do not reach it here. Nor do we reach Cruz-Hernandez’s other claims, which are based on errors related to Cruz-Hernandez’s absence at his prior removal…