In February, a Ninth Circuit panel ruled in Singh v. Garland that unless aliens receive a Notice to Appear in a single document specifying the time and date of the alien’s removal proceedings, any in absentia removal order directed at the alien is subject to rescission. The Ninth Circuit today denied rehearing en banc in Singh and in a case, Mendez-Colin v. Garland, that applied Singh.
Judge Daniel P. Collins, joined by 11 of his colleagues, vigorously dissented from the denial of en banc rehearing in both cases. [Addendum: Judge Diarmuid O’Scannlain, in senior status, also stated his agreement with Collins.] Here is the opening of Collins’s dissent in Singh (which is nearly identical to his dissent in Mendez-Colin):
The panel’s published opinion in Singh v. Garland seriously misconstrues the text of the Immigration and Nationality Act in resolving an exceptionally important question concerning the type of notice that must be provided to an alien under that Act before an immigration court may proceed with an in absentia removal. According to the panel decision in Singh, an alien who is properly served with notice of the date, time, and place of his or her removal hearing but then fails to show up can have the resulting in absentia removal order set aside based on irrelevant errors in paperwork at the outset of the removal process.
The panel’s erroneous decision casts doubt on the validity of potentially tens of thousands of in absentia removal orders that have been issued in this circuit over the last two decades. Indeed, in the panel’s accompanying unpublished decision in Mendez-Colin v. Garland, the reductio ad absurdum has already arrived: the panel applies Singh to invalidate a 19-year-old removal order entered in a case in which the alien, after attending multiple hearings over nearly a year and receiving actual notice of the next one, simply dropped out of contact with his lawyer and consequently skipped the next hearing.
It is little wonder that the panel’s erroneous decision—which already conflicted with a prior decision of the Sixth Circuit—has now been expressly rejected by the Eleventh Circuit. This is a paradigmatic case that cries out for further review, and I respectfully dissent from our failure to rehear this case en banc.
(For ease of reading, I’ve eliminated some citations and added paragraph breaks.)