Background
Lingying Wei was ordered removed in absentia after missing an immigration-court hearing. She moved to reopen, asserting both confusing government instructions and ineffective assistance: in a sworn declaration, she said her prior lawyer told her she did not need to attend because she had been released and would receive a new hearing date in New York.
The immigration judge and Board of Immigration Appeals rejected reopening. They found that the government’s later appointment notice did not explain the missed hearing and faulted Wei for failing to prove substantial compliance with procedural requirements for an ineffective-assistance claim.
The Court’s Holding
The Ninth Circuit agreed that the later government appointment did not itself establish exceptional circumstances. But it granted the petition because the agency failed to evaluate Wei’s sworn account of her lawyer’s advice under the governing totality-of-circumstances standard.
Attorney involvement can support exceptional circumstances even when separate written notice contradicted the advice. Compliance with the usual ineffective-assistance filing requirements bears on an independent ineffective-assistance ground, but is not a prerequisite to considering counsel’s role in why the person missed the hearing. The agency had to accept non-inherently-unbelievable sworn facts at this procedural stage and reconsider the motion.
Key Takeaways
- Sworn allegations that counsel caused a missed hearing must be addressed in the exceptional-circumstances analysis.
- Contradictory written notice does not automatically defeat a claim based on counsel’s advice.
- Procedural compliance for an independent ineffective-assistance claim is distinct from considering attorney involvement in the totality of circumstances.
- The ruling remands for reconsideration and does not itself rescind the removal order.
Why It Matters
Although nonprecedential, the disposition illustrates how Ninth Circuit law treats evidence at the motion-to-reopen stage. California immigration practitioners should provide a detailed sworn timeline tying counsel’s specific advice to the failure to appear and separately document compliance with ineffective-assistance procedures whenever possible.
The distinction between exceptional circumstances and an independent ineffective-assistance claim can be outcome-determinative. Counsel should address both paths explicitly, explain causation, attach all notices and communications, and reconcile any conflicting instructions. The panel did not order relief from removal; it required a legally adequate agency analysis on remand, where credibility and the remaining statutory requirements may still matter. Because the decision is unpublished, it should be used carefully and paired with the precedential authorities on which the panel relied.
Prompt filing also remains essential because the statutory reopening window is short. A complete record should show when prior counsel was retained, exactly what was said, and how that advice caused the absence rather than merely contributing to general confusion.
Read the full opinion (PDF) · Court docket