Unpub. BIA on In Absentia Order: Matter of Malvais-Hernandez

On September 22, 2011, an Immigration Judge ordered the respondent removed from the United States to Mexico. The Immigration Judge purported to order the respondent removed “in absentia”.  The respondent has appealed the Immigration Judge’s decision to the Board.  The Department of Homeland Security (the ”DHS”) filed a brief in support of the Immigration Judge’s decision.  The appeal will be sustained. … The respondent declined to state his name (Tr. at 14).  The Immigration Judge said that the respondent would be ordered removed in absentia for refusing to identify himself (Tr. at 15). … In this case … the Immigration Judge should not have entered an in absentia order, given that the respondent was in attendance at the September 22, 2011, hearing.  Therefore, we will sustain the respondent’s appeal of the Immigration Judge’s decision.” –

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