Chinedu Onyenobi, a Nigerian citizen and lawful permanent resident, was ordered removed in absentia twice after failing to appear at immigration hearings. Following his first in absentia order in 2018, he successfully moved to reopen his case, claiming he had moved for a job. However, he failed to appear again for a scheduled hearing in March 2020, resulting in a second in absentia order. Onyenobi subsequently filed a motion to reopen and rescind the order, arguing he did not receive proper notice and that exceptional circumstances, including the confiscation of his identification documents by DHS, prevented him from attending. The Immigration Judge denied the motion as untimely and found his lack-of-notice argument disingenuous. The Board of Immigration Appeals dismissed his appeal, rejecting his notice argument and declining to consider his claim about the confiscated documents because it was not raised before the Immigration Judge. Onyenobi then sought review in the Sixth Circuit.
The Sixth Circuit reviewed the BIA's decision de novo, limited to constitutional claims and questions of law. The court addressed Onyenobi's primary argument that DHS violated his due process rights by confiscating his identification documents without a hearing, which allegedly prevented him from obtaining counsel and attending his hearing. The court applied the standard that a petitioner must show both a defect in the removal proceeding and prejudice resulting from that defect. The court found that Onyenobi failed to demonstrate prejudice. While he argued that the lack of identification prevented him from working and hiring an attorney, he did not explain what specific arguments he would have raised to overcome his removability based on his criminal conviction. He conceded he was removable under the statute and did not identify any equities that would have changed the outcome. Furthermore, the court held that Onyenobi was required to exhaust his due process claim before the BIA. Although the BIA lacks jurisdiction over some constitutional claims, it has jurisdiction to correct procedural due process errors that affect the resolution of a case. Because Onyenobi failed to raise this claim properly before the BIA, the court could not consider it. Finally, the court noted that Onyenobi conceded his argument regarding the sufficiency of the Notice to Appear was foreclosed by the Supreme Court's decision in Campos-Chaves v. Garland.
The decision reinforces the strict requirement that noncitizens must demonstrate exceptional circumstances to reopen removal proceedings after a second in absentia order. It clarifies that due process claims regarding procedural errors, such as the confiscation of documents, must be exhausted before the BIA if the agency has the authority to correct them. The ruling leaves open the question of whether a petitioner can succeed on a due process claim without showing specific prejudice to the outcome of the removal proceedings, though the court indicated such a showing is necessary.
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