(CN) - The 9th Circuit instructed a lower court to vacate a Yemen citizen's removal order, saying "the record contains no evidence relevant to the charge of removability."
Hani Abdulmalek Al Mutarreb came to California in 1998 on a student visa. When he stopped attending college, the government placed him in removal proceedings. It sent him a notice to appear in court, but he never received it. As a result, an immigration judge ordered him removed in his absence. The judge signed a computer-generated order for removal, but failed to check one of the two boxes indicating whether her finding of removability was supported by documentary evidence or Al Mutarreb's admission of the factual allegations.
The Board of Immigration Appeals approved the order, holding that the government had sufficiently tried to notify Al Mutarreb.
On remand, the board chalked up the judge's failure to check either box to a "clerical oversight" that shouldn't affect the petitioner's removability. The board cited Al Mutarreb's previous asylum petition, where he left the education section blank, as evidence that he failed to meet his student-visa requirements.
The federal appeals court in San Francisco said the order can't stand, because it isn't supported by substantial evidence.
"[T]he (immigration judge) was without statutory authority to order Al Mutarreb removed in absentia," Judge Berzon wrote, "which requires that removability be established by 'clear, unequivocal and convincing evidence.'"
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