Matter of Jean Robert Evra
**The conduct underlying an alien’s arrest and incarceration does not constitute “fault” within the meaning of INA section 240(b)(5)(C)(ii)**
The IJ ordered the Respondent removed in absentia for failing to appear. The Respondent filed a motion to reopen to rescind an abstentia order, arguing that because he was in State custody at the time of the hearing, his failure to appear was through no fault of his own. The IJ erred in denying the Respondent’s motion and finding that only individuals who are confined in custody on criminal charges at the time of their immigration hearing and who are later acquitted of the criminal charges, or have their charges dismissed, are entitled to have their removal proceedings reopened because their confinement was “through no fault of their own.” The conduct underlying the alien’s arrest and incarceration does not constitute “fault” within the meaning of the statute. In addition, the clear purpose of the statute is to prevent individuals in such custody from being ordered removed in absentia when they are unable to attend their hearing as a result of their incarceration.
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