Wei v. Blanche: Attorney Advice, Affidavits, and an In Absentia Reopening Motion

Case Overview

Wei v. Blanche, No. 22-92 (9th Cir. Sept. 28, 2026), is a nonprecedential memorandum disposition issued by a three-judge panel of the United States Court of Appeals for the Ninth Circuit. Under Ninth Circuit Rule 36-3, the disposition is not precedent except as that rule provides, and it does not independently alter binding circuit doctrine. The panel nonetheless applied and reinforced controlling published authority governing the evidentiary standard for sworn affidavits in reopening proceedings and the procedural threshold for attorney-advice claims.

Petitioner Lingying Wei, a native and citizen of China, sought review of a Board of Immigration Appeals order affirming an immigration judge's denial of her motion to reopen and rescind an in absentia removal order. The Ninth Circuit granted the petition for review in full and remanded the matter to the agency for further proceedings. The grant of review and remand does not rescind the removal order; it requires the agency to reconsider the motion under the correct legal standards.

Factual Background

Wei was detained in 2018 and later released while her immigration proceedings remained pending. The dispute concerns what caused her to miss a scheduled hearing after that release—not the ultimate merits of her protection claims.

Wei appeared pro se at hearings on September 4 and September 19, 2018, requesting continuances each time to secure counsel. The immigration judge granted both requests and each time personally served Wei with written notice of her next hearing date, including express written warnings that failure to appear could result in an in absentia removal order. The third hearing was set for September 26, 2018.

On September 25, 2018—the day before the scheduled hearing—the Department released Wei from custody and served her with a Notice of Release. That document expressly stated that individuals who had already appeared before an immigration judge had been told when to appear for their next hearing and remained obligated to attend. Wei did not appear on September 26, and the immigration judge ordered her removed in absentia.

Represented by new counsel, Wei filed a timely motion to reopen. She submitted a sworn affidavit stating that on the day of her release, Huang had told her she did not need to appear for the September 26 hearing because she had been released and would receive a new hearing date in New York. The agency denied the motion, concluding that neither the DHS notice nor the attorney-advice claim established exceptional circumstances.

Legal Framework for In Absentia Rescission

Federal law permits rescission of an in absentia removal order on a motion filed within one hundred eighty days if the noncitizen demonstrates that exceptional circumstances caused the failure to appear. Slip op. at 2. An in absentia order may also be rescinded on an independent finding of ineffective assistance of counsel, which the Ninth Circuit has recognized as a separate ground for relief. Slip op. at 2–3.

The Board of Immigration Appeals abuses its discretion when it acts arbitrarily, irrationally, or contrary to law. The panel reviewed both the Board's decision and the immigration judge's underlying reasoning because the Board issued its own decision while relying in part on the immigration judge's analysis. Slip op. at 2.

The DHS Notice Theory: No Abuse of Discretion

The panel first affirmed the agency's rejection of Wei's notice-confusion theory. The court observed that Wei had received clear, direct notice from the immigration judge of her September 26 hearing, along with warnings of in absentia consequences, and that the Notice of Release served on September 25 itself reminded her that prior court scheduling remained operative. Slip op. at 2–3. Wei provided no explanation for why the October 2 appointment in New York prevented her from attending a hearing the prior week in San Diego. On that record, the agency's finding was not an abuse of discretion. Slip op. at 3.

The Attorney-Advice Theory: Legal Error on Two Grounds

Misapplication of the Lozada Requirement

The Board had rejected Wei's attorney-advice argument in part because she had not demonstrated substantial compliance with administrative procedural requirements for ineffective-assistance claims. The panel held this was legal error. Slip op. at 3–4.

The court drew a precise distinction that practitioners must understand. Substantial compliance with the administrative prerequisites is required only when a petitioner asserts ineffective assistance of counsel as an independent, freestanding basis for rescission of an in absentia order. When the attorney's involvement is offered as one factor in the totality of the circumstances that may constitute exceptional circumstances under the governing statute, the formal procedural compliance requirement does not apply. Slip op. at 4. The agency failed to evaluate the attorney-advice claim under the correct totality-of-circumstances framework and could not refuse to consider it simply because the standalone ineffective-assistance threshold was not met.

Rejection of the Affidavit Without an Unbelievability Finding

The panel identified a second, independent legal error in the agency's handling of Wei's sworn affidavit. The Board had treated the affidavit as uncorroborated and therefore insufficient, citing its own administrative precedent for the proposition that unsubstantiated assertions cannot establish exceptional circumstances. Slip op. at 4–5.

The court held that this standard conflicted with binding circuit authority. Because motions to reopen are decided on written submissions without a hearing, the agency is required to accept a petitioner's sworn statements as true unless the facts stated are inherently unbelievable. Slip op. at 4–5. Corroboration of an otherwise credible declaration is unnecessary under this framework. Slip op. at 5. The Board's reliance on its own administrative precedent could not displace controlling circuit law. Slip op. at 5. Because the agency made no finding that Wei's affidavit was inherently unbelievable, it was obligated to treat her account—including her assertion that Huang advised her to skip the hearing—as true for purposes of the motion.

On both grounds, the panel granted the petition for review and remanded for the agency to reconsider the exceptional-circumstances claim under the correct standards. Slip op. at 5.

Concurring Opinion: Same Outcome, Different View

Judge VanDyke concurred in the judgment but wrote separately to criticize the circuit's deem-true rule. The concurrence did not alter the controlling outcome or the legal standards applied by the majority disposition.

Judge VanDyke acknowledged that the record presented real questions about whether Huang had ever established an attorney-client relationship with Wei—there was no notice of appearance, and available evidence suggested Huang's connection to Wei may have been limited to purchasing an airline ticket. Wei, slip op. at 6 (VanDyke, J., concurring). He argued that requiring an agency to accept a petitioner's uncorroborated self-serving declaration as true, without allowing adverse evidence to be weighed, produces an easily gamed standard. Slip op. (VanDyke, J., concurring) at 6–7. But he acknowledged that under existing circuit precedent he was bound by the majority's approach, and he therefore concurred in the judgment. Slip op. (VanDyke, J., concurring) at 1, 8.

The concurrence's arguments represent one judge's stated disagreement with binding panel authority; they do not change what the agency must do on remand.

Record and Practice Implications

• Nonprecedential scope: This memorandum disposition applies Ninth Circuit Rule 36-3 and is not independently citable as binding authority. Its significance lies in its application of existing published decisions.
• Remand rather than an award of relief: The court granted the entire petition and remanded. The in absentia order is not rescinded; the agency must reconsider under the correct standards.
• Lozada and totality claims are separate tracks: A petitioner who cannot satisfy the formal procedural prerequisites for a standalone ineffective-assistance claim may still present attorney involvement as part of a totality-of-circumstances exceptional-circumstances argument. Both tracks require their own supporting facts and legal framing.
• Affidavit specificity is critical: Because the deem-true rule protects factual assertions that are not found inherently unbelievable, a detailed, internally consistent affidavit describing specific interactions with a prior representative carries significant procedural weight in Ninth Circuit reopening practice.
• No relief guaranteed: A remand compels reconsideration under the correct standard. The agency may still deny reopening if it properly evaluates the evidence and finds exceptional circumstances not established.

For guidance on building the evidentiary record for a motion to reopen, see our insight on missed hearings and attorney advice, our checklist on motions to reopen, and our resource on managing immigration court notice obligations.