                            In the
    United States Court of Appeals
               For the Seventh Circuit
                        ____________

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
                        ____________
        ARGUED JUNE 1, 2005 —DECIDED AUGUST 9, 2005Œ
            OPINION PUBLISHED AUGUST 30, 2005
                      ____________

    Before MANION, WOOD, and SYKES, Circuit Judges.

  PER CURIAM. After learning that she had been ordered
removed from the United States in absentia, Sun Hee Ko
asked an immigration judge (“IJ”) 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


Œ
  This appeal was originally decided by unpublished order of
August 9, 2005. See Circuit Rule 53. The court has subsequently
decided to issue the decision as an opinion.
2                                              No. 04-2925

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, leav-
ing 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 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  When the government learned that Ko’s visa was no
longer valid, it sent her a notice to appear before the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.
No. 04-2925                                                  3

  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 ad-
justment 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, assert-
ing 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.
 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
4                                                 No. 04-2925

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 Immi-
gration 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 re-
versal 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
No. 04-2925                                                   5

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 National-
ity 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 reopen-
ing, whether or not the notice was properly sent. See Joshi,
389 F.3d at 736.
   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. Gonza-
les, 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
6                                                No. 04-2925

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 deci-
sion 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.

A true Copy:
       Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                    USCA-02-C-0072—8-30-05
