Sun Hee Ko v. ALBERTO R. GONZALES, Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 1, 2005
Decided August 9, 2005
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-2925
SUN HEE KO,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals
No. A75-880-560
O R D E R
After learning that she had been ordered removed from the United States
in absentia, Sun Hee Ko asked an immigration judge in Cincinnati to reopen her
case. The IJ granted her motion, then transferred the case to Chicago, where Ko
had moved. The IJ in Chicago, however, disagreed with the decision to reopen, so he
reinstated the in absentia removal order. Ko now argues that it was error for the
second IJ to reconsider the first IJ’s decision to reopen her case.
Ko came from South Korea to Ohio in 1994 to study music. She took a full
course-load until early 1997, when various pressures caused her to drop two
courses, leaving her with only a part-time schedule. Unfortunately, this violated the
terms of her F-1 student visa, which required her to attend classes full-time. She
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-2925 Page 2
resumed full-time studies the next semester and tried to have her F-1 status
reinstated, but she was unsuccessful.
When the government learned that Ko’s visa was no longer valid, it sent her
a notice to appear before the immigration court in Cincinnati. The notice was sent
by certified mail to Ko’s last known address: “1723 East Dorothy Lane” in
Kettering, Ohio. Ko had moved from that address several months earlier, but a
forwarding order was in effect so she received the notice anyway. This first notice
did not include the date and time of Ko’s hearing; that information was provided
later in a second notice sent by regular mail, again to “1723 East Dorothy Lane.”
But Ko did not receive this second notice—it was returned to the immigration court
marked “Attempted Not Known.”
Ko’s hearing was held on February 4, 1999. When Ko did not appear,
Immigration Judge Robert Newberry entered an in absentia order of removal. A
copy of the order was sent by regular mail to the Dorothy Lane address. Again the
letter was returned to the court, this time with a sticker stating that the forwarding
order had expired and identifying Ko’s current address as “6520 Pine Cone Drive” in
Dayton, Ohio.
Unaware of the removal order entered against her, Ko continued her studies
and obtained her bachelor’s degree in December 1999. She was admitted into a
graduate music program, and in January 2000 again applied for reinstatement of
her F-1 status. In her application, she stated that her earlier violation of the terms
of her visa was inadvertent and that she “did not intend to violate any INS laws.”
She also explained that she had recently become engaged to a Korean-born U.S.
citizen and that they planned to get married that summer. She expressed hope that
reinstatement would allow her “to finish my graduate studies and to lawfully marry
my fiancé.” It is unclear from the record what ultimately became of this application.
Ko was married in July 2000 and moved to Illinois to live with her husband.
She successfully applied for adjustment of status based on her marriage, and by
November 2001 had applied for permanent residency. At some point, she learned of
the in absentia order from February 1999. Accordingly, in December 2001 she filed
a motion to reopen proceedings with the Cincinnati immigration court, asserting
that although she received the initial Notice to Appear, she never received the
following notice containing the date and time of the hearing. The government
opposed the motion, arguing that Ko was not entitled to notice of the hearing
because she did not provide the government with a current address, as she was
required to do. Immigration Judge Newberry summarily granted the motion to
reopen and, at Ko’s request, transferred the case to the immigration court in
Chicago.

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No. 04-2925 Page 3
The case was assigned to Immigration Judge Craig Zerbe. At the initial
calendar hearing in May 2002, Judge Zerbe expressed some frustration with
Judge Newberry’s unexplained decision to reopen the case: “Let me just say, I don’t
agree with that practice of reopening cases on a disputed motion without giving any
explanation in a written decision. But, here you are, so, there’s little I can do about
it.” He continued Ko’s hearing to March 2003 to allow her to file a motion for
adjustment of status.
On the day of the hearing, however, Judge Zerbe changed his mind. Rather
than allow the parties to argue the merits of the adjustment motion, the judge
devoted the hearing to explaining why he thought the motion to reopen should not
have been granted in the first place. Noting that Judge Newberry did not explain
his decision, he inferred that “the reason why the Judge didn’t indicate anything is
because he didn’t have any justification.” He concluded that the notice of the date
and time of Ko’s hearing was properly sent to her last known address, and that if Ko
did not receive that notice it was her own fault for not notifying the immigration
court that she had moved. In fact, the judge was convinced that this lack of
notification was strategic—that Ko had deliberately avoided alerting the court to
her whereabouts until after her marriage and the approval of her marriage visa, in
what amounted to a “clear defrauding of the Immigration system.” Ko asked for a
continuance in order to respond to these assertions, but the IJ denied her request.
Concluding that Judge Newberry’s decision to reopen was “not worth any credit,”
Judge Zerbe reversed the reopening and reinstated Ko’s order of removal.
The Board of Immigration Appeals upheld the reversal and reinstatement.
Although it acknowledged that when a case is reassigned to a new judge, “the
successor judge should generally not reexamine earlier rulings merely because he
has a different view of the law or facts than the original judge,” the Board concluded
that reexamination was appropriate in this case because Judge Newberry did not
explain his decision to reopen, as the Board requires when a motion to reopen is
opposed, see Matter of Correa, 19 I. & N. Dec. 130, 132–33 (BIA 1985). The Board
also agreed with Judge Zerbe that reopening was improper because Ko “did not
present a case that she was prima facie eligible for reopening.”
The Board was incorrect, however, that Ko presented no basis for reopening
her case. Reopening is permitted after entry of an in absentia removal order if the
alien did not receive notice of the hearing. See Immigration and Nationality Act
(“INA”) § 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii); Joshi v. Ashcroft, 389 F.3d
732, 736 (7th Cir. 2004). The record shows that the notice of Ko’s hearing was
returned to the court stamped “Attempted Not Known,” demonstrating more or less
conclusively that Ko did not receive it—a permissible basis for reopening, whether
or not the notice was properly sent. See Joshi, 389 F.3d at 736.

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If, on the other hand, Ko did not receive the notice because, as Judge Zerbe
believed, she was deliberately hiding from immigration officials until after her
marriage and the approval of her immigrant visa, she would not be entitled to the
benefit of a reopening. See Singh v. Gonzales, 404 F.3d 1024, 1028–29 (7th Cir.
2005). But the record does not support that conclusion. Rather it shows that, far
from waiting until after she became eligible for a marriage adjustment, Ko asked
immigration officials to reinstate her F-1 status six months before her wedding.
Judge Zerbe did not give Ko an opportunity to present such evidence—he gave no
notice before the March 2003 hearing that he was planning to reconsider the
reopening of the case, and he refused Ko’s request for a continuance. Instead, his
decision appears to be based only on unsupported speculation about Ko’s motives.
As we explained in Williams v. Commissioner, 1 F.3d 502, 503 (7th Cir.
1993), “[l]itigants have a right to expect that a change in judges will not mean going
back to square one.” Although Judge Newberry should have explained his reasons
for granting Ko’s motion to reopen, his decision was not so baseless as to warrant a
precipitous and unsupported reversal. That reversal was an abuse of discretion, and
so we GRANT the petition for review, VACATE the order of removal, and REMAND
the case for a hearing on Ko’s adjustment application.

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