Vyloha v. Barr, No. 18-3298 (7th Cir. 2019)Annotate this Case
Vyloha, a Czech citizen, entered the U.S. in 1998 and overstayed his visa. In 2006, after he was convicted of DUI, DHS charged Vyloha with removability, 8 U.S.C. 1227(a)(1)(B). The notice indicated that the hearing’s time and date were to be determined. Days later, a notice was mailed to Vyloha’s attorney setting the date. On October 13, 2006, Vyloha appeared before and presented a letter from his counsel, requesting rescheduling. Vyloha indicated that he preferred to proceed in English. The IJ personally served Vyloha with notice of his rescheduled hearing in May 2007 and orally warned him about the consequences of failing to appear. Vyloha did not appear at that hearing. The IJ ordered him removed in absentia. Shortly thereafter, police arrested Vyloha for driving with a suspended license. While serving a sentence for that offense, Vyloha learned that there was an ICE detainer on him. ICE did not take him into custody at the conclusion of his sentence, but, in 2017, apprehended Vyloha. He moved to reopen his proceedings and to rescind the in absentia order, claiming he had no notice of the 2007 hearing due to his limited English and exceptional circumstances due to his counsel’s ineffectiveness. The BIA upheld the denial of that motion. Vyloha unsuccessfully sought reconsideration based on the Supreme Court’s 2018 "Pereira" decision, arguing that because his initial Notice lacked the specific date, the immigration courts did not have subject-matter jurisdiction. The Seventh Circuit agreed. Vyloha could have argued that his Notice was statutorily deficient before the Pereira decision, so his challenge is untimely. Given his personally-served notice and appearance at a hearing, Vyloha cannot show prejudice that would excuse his forfeiture.