Rosmery Andia Amilcar E. Torrez v. John Ashcroft, Attorney General

Petitioners Rosmery Andia and her son, Amilcar Torrez, were deported in absentia because they did not appear at their deportation hearing. They filed a motion to reopen, maintaining that they had not received notice of the hearing. The Immigration Judge (IJ) denied the motion on the ground that Andia and Torrez did not file their motion to reopen until seven months after they discovered the deportation order, and the Board of Immigration Appeals (BIA) approved the IJ’s decision as an appropriate exercise of discretion. Because the statute and regulations governing the timing of this suit allow appellants to seek reopening of an in absentia deportation order at “any time,” 8 U.S.C. § 1252b(e)(3)(B) (1994), on lack-of-notice grounds, we grant the petition and remand for further proceedings.

I

Rosmery Andia and her son entered the United States from Bolivia in October 1990 without inspection. On May 19, 1995, they filed an asylum application with the INS. The application was prepared by an immigration consultant and represented that petitioners’ address for the last five years was 2130 Crescent Avenue. Petitioners allege that they have never lived at that address, and that…