Vukmirovic v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PREDRAG VUKMIROVIC, 
Petitioner, No. 05-75936
v.
 Agency No.
A072-443-690
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
April 14, 2010—San Francisco, California

Filed September 8, 2010

Before: Mary M. Schroeder and Johnnie B. Rawlinson,
Circuit Judges, and James Maxwell Moody, District Judge.*

Opinion by Judge Schroeder;
Dissent by Judge Rawlinson

*The Honorable James Maxwell Moody, Senior United States District
Judge for the Eastern District of Arkansas, sitting by designation.

13651
13654 VUKMIROVIC v. HOLDER

COUNSEL

David Gardner, Los Angeles, California, for petitioner Pre-
drag Vukmirovic.

Liza Murcia, Department of Justice, Washington, D.C., for
respondent Eric H. Holder Jr., Attorney General.

OPINION

SCHROEDER, Circuit Judge:

When this petitioner’s case was before us over six years
ago we remanded, holding that the Board of Immigration
 VUKMIROVIC v. HOLDER 13655
Appeals (“BIA”) and Immigration Judge (“IJ”) had erred as
a matter of law in ruling that the petitioner was not eligible
for asylum consideration. See Vukmirovic v. Ashcroft, 362
F.3d 1247, 1253 (9th Cir. 2004) (“Vukmirovic I”). Unfortu-
nately after remand Petitioner’s newly retained counsel was
not immediately able to contact the Petitioner to file a notice
of appearance; the immigration court gave notice of the new
hearing to his old counsel who did nothing, and Vukmirovic
was ordered deported in absentia. The BIA denied reopening
even after Vukmirovic’s new counsel was able to appear and
explain the situation. We now hold that this case presents “ex-
ceptional circumstances” within the meaning of the control-
ling statute, 8 U.S.C. § 1252b(f)(2) (1994), and remand for
the asylum hearing we held Petitioner was entitled to in 2004.

BACKGROUND

This case goes back to 1991 when Pedrag Vukmirovic, a
Bosnian Serb, fled the violence in the former Yugoslavia to
come to the United States. He applied for asylum soon after
he arrived, and then in 1996 married a United States citizen.
At two subsequent deportation hearings Vukmirovic sought
continuances to allow the Immigration and Naturalization
Service (“INS”) to process his application for adjustment of
status from his marriage, but the IJ denied those requests and
proceeded to order him deported. The record does not indicate
whether he is still married.

Vukmirovic has never had a ruling on the merits of his asy-
lum application. At his 1996 asylum hearing the IJ effectively
took over the proceedings, often interrupting him to ask ques-
tions. See Vukmirovic I, 362 F.3d at 1249 (“The IJ com-
menced the hearing by conducting the examination of
Vukmirovic himself; it was only after the IJ concluded his
questioning that he allowed Vukmirovic’s counsel to begin
presenting his case. Even after Vukmirovic began presenting
his case, the IJ frequently interrupted to ask a series of ques-
tions.”). In the testimony key to our 2004 ruling, Vukmirovic
13656 VUKMIROVIC v. HOLDER
testified that in 1990, he had joined an anti-communist group,
affiliated with the Serbian Orthodox religion, whose job it
was to defend his town against the attacks of Bosnian Croats.
Bosnian Croats attacked Vukmirovic’s town on several occa-
sions, and Vukmirovic attempted to repel these attacks using
only knives and sticks.

On the basis of this testimony, the IJ determined that Vuk-
mirovic was a persecutor and statutorily barred from asylum,
see 8 U.S.C. § 1101(a)(42), never reaching the merits of his
asylum claim. The BIA issued a summary affirmance.

Attorney Steve Paek had represented Vukmirovic before
the BIA, but whenVukmirovic sought review of the IJ’s deci-
sion in this court he retained attorney David Gardner to repre-
sent him. In a published opinion, we held that the persecutor
bar did not apply because Vukmirovic was acting in self
defense. See Vukmirovic I, 362 F.3d at 1252-53. We granted
the petition for review and remanded the case to the BIA for
further proceedings. See id. at 1253.

On remand, however, due to an unfortunate and unusual
confluence of events, the subsequent proceedings ordered by
this court never occurred. The mandate in Vukmirovic I issued
on June 24, 2004, and the BIA remanded the case to the
immigration court on September 23, 2004. Although Gardner
was Vukmirovic’s counsel, because Paek had represented
Vukmirovic before the BIA, the BIA provided notice of the
remand only to Paek. See 8 C.F.R. §§ 292.5, 1003.1(f).1 The
BIA did not provide personal notice to Vukmirovic.

After retaining Gardner, Vukmirovic left his listed perma-
1
Section 1003.1 provides that service of BIA decisions “shall be served
upon the alien or party affected as provided in part 292 of this chapter.”
Section 292.5 provides such service “shall be given by or to, served by or
upon, made by, or requested of the attorney or representative of record, or
the person himself if unrepresented.”
 VUKMIROVIC v. HOLDER 13657
nent residence. According to his declaration, he did not relo-
cate to a new address, but traveled and stayed for short
periods of time with friends and different roommates, and as
a result Gardner was unable to contact him. This prevented
Gardner from filing a notice of appearance before the immi-
gration court, because the notice of appearance form explic-
itly requires the alien’s consent to the entry of a representative
appearance before the immigration court. See Executive
Office for Immigration Review, Form 28 (2001) (“EOIR-28”)
(“When an appearance is made by a person acting in a repre-
sentative capacity, his/her personal appearance or signature
shall constitute a representation that . . . he/she is authorized
. . . to represent individuals.”).

When the immigration court sent notice of the asylum hear-
ing to Paek, setting a date of hearing of December 9, 2004,
it did not send notice to Vukmirovic’s home address. Paek did
not inform the immigration court that he was no longer repre-
senting Vukmirovic, and does not appear to have made any
effort to contact his former client to alert him to the new pro-
ceedings. As Gardner had not yet filed a notice of appearance,
Gardner did not know of the December 9 hearing.

When neither Vukmirovic nor anyone representing him
appeared for the December 9 hearing, the IJ set a new hearing
date of January 6, 2005, and mailed notice, again to Paek, and
also to Vukmirovic’s home address. Vukmirovic, still away,
did not receive the notice and was under the mistaken impres-
sion that Gardner would receive any correspondence related
to his case. Paek received notice of the January hearing but
again neither withdrew nor made any effort to contact Vuk-
mirovic. Gardner, still unable to file a notice of appearance,
again did not receive any notice. When no one appeared at the
January 2005 hearing, the IJ ordered Vukmirovic removed in
absentia. Contrary to the dissent’s assertions, Vukmirovic did
not disappear. He was arrested at work within a few weeks
and placed into detention.
13658 VUKMIROVIC v. HOLDER
Vukmirovic immediately contacted Gardner after the arrest.
When Gardner learned what had transpired, he quickly filed
a motion to reopen on February 4, 2005, and promptly filed
a notice of appearance, showing Vukmirovic’s consent, on
February 10, 2005.

The IJ denied the motion to reopen and ruled that the notice
to Vukmirovic’s home address satisfied due process. The IJ
also held that, even though Paek had not represented Vuk-
mirovic in his successful petition in this court, there was no
error in notifying Paek as Vukmirovic’s counsel because
Gardner had not filed a notice of appearance. On appeal, the
BIA affirmed the IJ’s due process ruling and additionally
found that Vukmirovic had not demonstrated that the absence
from his hearing was due to “exceptional circumstances”
within the meaning of the applicable statute. 8 U.S.C.
§ 1252b(f)(2) (1994); Singh v. INS, 295 F.3d 1037 (9th Cir.
2002). The BIA cited our decision in Valencia-Fragoso v.
INS, 321 F.3d 1204 (9th Cir. 2003) (per curiam), and ruled
that, as a matter of law, exceptional circumstances could not
exist because Vukmirovic was seeking discretionary relief in
the form of asylum.

DISCUSSION

Vukmirovic argues that the immigration court provided
constitutionally inadequate notice of the hearings, and that the
exceptional circumstances of his case warrant granting the
motion to reopen. We agree with Vukmirovic that this case
presents exceptional circumstances under the relevant statute
and therefore do not reach the due process question. See Lee
v. Walters, 433 F.3d 672, 677 (9th Cir. 2005) (stating that
courts should avoid reaching constitutional issues unless it is
necessary to do so).

[1] Vukmirovic is entitled to recision of his in absentia
deportation order if he demonstrates “that the failure to appear
was because of exceptional circumstances.” 8 U.S.C.
 VUKMIROVIC v. HOLDER 13659
§ 1252b(c)(3)(A) (1994). The controlling statute defined “ex-
ceptional circumstances” as “circumstances (such as serious
illness of the alien or death of an immediate relative of the
alien, but not including less compelling circumstances)
beyond the control of the alien.” 8 U.S.C. § 1252b(f)(2);
recodified at 8 U.S.C. § 1229a(e)(1) (defining exceptional cir-
cumstances as “exceptional circumstances (such as battery or
extreme cruelty to the alien or any child or parent of the alien,
serious illness of the alien, or serious illness or death of the
spouse, child, or parent of the alien, but not including less
compelling circumstances) beyond the control of the alien”).2
We have said that the determination of whether “exceptional
circumstances” exist is based on the “particularized facts pres-
ented in each case,” see Singh v. INS, 295 F.3d 1037, 1040
(9th Cir. 2002) (citation omitted), and have never pointed to
a single circumstance as either qualifying or disqualifying a
situation from consideration as exceptional.

Singh is our leading case interpreting the term “exceptional
circumstances.” The petitioner in Singh had obtained several
continuances of his deportation hearing to obtain adjustment
of status due to his marriage to a United States citizen. Id. at
1038-39. After becoming facially eligible for adjustment, he
drove with his family to a deportation hearing only to learn
he was late. Id. We rejected the government’s argument that
petitioner’s tardiness did not present an exceptional circum-
stance, instead finding that the “particularized facts pres-
ented” were indeed exceptional. Id. at 1040 (citation omitted).
The petitioner was the beneficiary of an approved visa peti-
tion, would not have been deported had he been on time, and
thus “had no possible reason to try to delay the hearing.” Id.
at 1039-40. Because deportation would have led “to the
unconscionable result of deporting an individual eligible for
2
The Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, § 304(a), 110 Stat. 3009, deleted Section
1252b and recodified the definition of exceptional circumstances in essen-
tially the same form in Section 1229a(e)(1).
13660 VUKMIROVIC v. HOLDER
relief from deportation,” we found the BIA abused its discre-
tion in denying the motion to reopen. Id. at 1040.

We built upon Singh in Chete Juarez v. Ashcroft, 376 F.3d
944, 947 (9th Cir. 2004), and found exceptional circum-
stances in another “compelling factual situation.” There, the
petitioner entered the United States in 1985, but the INS did
not commence deportation proceedings until 1995. Id. at 946.
The petitioner sought suspension of deportation, arguing that
deportation would cause extreme hardship on her and her
children. Id. The IJ denied relief finding that petitioner did not
meet the requirements for suspension. Id. at 946-47. Over five
years later, the BIA reversed and remanded the case to the IJ
to reconsider petitioner’s claim. Id. at 947. The petitioner,
however, had moved while the proceedings were pending
before the BIA, and she claimed the immigration court did not
receive her change of address form. Id. She therefore missed
her hearing because the immigration court sent notice to her
old address. Id.

We found that case presented exceptional circumstances
because “[t]he hearing Petitioner missed represented the cul-
mination of years of efforts to regularize her status, and she
had no reason to try to delay the hearing” since “[s]he had
prevailed on appeal before the BIA and could finally proceed
with her request for relief.” Id. at 948. Additionally, we deter-
mined that, had petitioner appeared at her hearing, she “like-
ly” would have obtained the desired grant of suspension of
deportation. Id.

We have been careful to distinguish those cases presenting
exceptional circumstances from cases where the facts sur-
rounding a petitioner’s failure to appear were unexceptional
and ordinary. We discussed one such ordinary case in
Valencia-Fragoso v. INS, 321 F.3d 1204 (9th Cir. 2003) (per
curiam), upon which the BIA relied. There, the petitioner
received notice of her deportation hearing, but arrived late,
having lost the notice and forgotten the scheduled time. Id. at
 VUKMIROVIC v. HOLDER 13661
1205. We found that the case did not present exceptional cir-
cumstances because there was nothing compelling about for-
getting what time to show up for a hearing. Id. at 1205-06.
We also distinguished Singh because the petitioner in
Valencia-Fragoso did not have an approved visa petition and
could at most have hoped for a discretionary grant of volun-
tary departure. Id.

[2] Valencia-Fragoso correctly recognized that the proba-
bility of relief is a relevant variable in determining whether
exceptional circumstances exist. The BIA in this case, how-
ever, interpreted the case as holding that a petitioner could
effectively never demonstrate that exceptional circumstances
are present so long as the petitioner is seeking a discretionary
form of relief. In so doing, the BIA erred as a matter of law
and therefore abused its discretion. Our cases have consis-
tently held that “we consider all exceptional-i.e., compelling-
circumstances relevant to a petitioner’s motion to reopen.”
See Chete Jurarez, 376 F.3d at 948; see also Singh, 295 F.3d
at 1040 (requiring courts to look to the “particularized facts
presented in each case”) (citation omitted). That the relief
sought is discretionary has never been an absolute bar. Indeed
this court has found there were exceptional circumstances
where the relief sought was discretionary. See Chete Juarez,
376 F.3d at 949 n.5 (granting motion to reopen to pursue sus-
pension of deportation); Lo v. Ashcroft, 341 F.3d 934, 935-39
(9th Cir. 2003) (granting motion to reopen to pursue cancella-
tion of removal). Thus, contrary to the BIA’s holding here,
deciding whether exceptional circumstances are present
requires a consideration of all facts in a specific case, includ-
ing but not limited to the probability of the petitioner obtain-
ing relief.

[3] The First Circuit has adopted a similar, holistic,
approach that rejects any simplistic definition of exceptional
circumstances that would exclude from the realm of extraordi-
nary any case where the relief sought is asylum. See Kaweesa
v. Gonzales, 450 F.3d 62, 68-70 (1st Cir. 2006) (determining
13662 VUKMIROVIC v. HOLDER
BIA abused discretion in denying motion to reopen where
relief sought was asylum). In Kaweesa, the court held that the
“totality of the circumstances must be considered,” and noted
that a proper inquiry into whether there are exceptional cir-
cumstances looks to the specific facts of each case. Id. at 68-
69 (looking to supporting documentary evidence, the alien’s
efforts in contacting the immigration court, the strength of an
alien’s underlying claim, the harm an alien would suffer if
removed, promptness of the motion to reopen, and inconve-
nience to the government) (citation omitted); see also In re B-
A-S-, 22 I. & N. Dec. 57, 58 (BIA 1998) (noting that “the
totality of circumstances pertaining to the alien’s case must be
considered” in determining whether exceptional circum-
stances are present) (internal quotation marks and citation
omitted). We agree with the First Circuit that the nature of
relief is not dispositive, and that we should look to the “total-
ity of the circumstances” to determine whether exceptional
circumstances are present in a given case.

[4] Applying the proper standard, we conclude that the
peculiar qualities of this case demonstrate exceptional circum-
stances. Vukmirovic applied for asylum almost two decades
ago, achieved a victory before this court in Vukmirovic I, and
still has not had his asylum claim decided under the proper
legal standard. He had no motivation to delay the hearing, as
having a fair adjudication of his asylum claim “represented
the culmination of years of efforts to” seek lawful status in
this country. See Chete Juarez, 376 F.3d at 948. Like the peti-
tioner in Chete Juarez, Vukmirovic “had prevailed on appeal
before [this court in 2004] and could finally proceed with
[his] request for relief.” See id.

[5] Neither Vukmirovic nor his attorney Gardner received
notice of the hearing because of an ironic series of events.
Vukmirovic was away from his permanent address and quite
reasonably expected that Gardner was handling all matters
related to his asylum application. Gardner, for his part, could
not file a notice of appearance before the immigration court
 VUKMIROVIC v. HOLDER 13663
because he did not yet have Vukmirovic’s consent to do so.
Filing a notice of appearance in the absence of such consent
was contrary to Department of Homeland Security regulations
as incorporated by the notice of appearance form, and possi-
bly would have been an ethical violation. See Cal. Bus. &
Prof. Code § 6104 (“Corruptly or wilfully and without author-
ity appearing as attorney for a party to an action or proceeding
constitutes a cause for disbarment or suspension.”); EOIR-28
(“When an appearance is made by a person acting in a repre-
sentative capacity, his/her personal appearance or signature
shall constitute a representation that . . . he/she is authorized
and qualified to represent individuals.”). Vukmirovic’s coun-
sel cannot be faulted, as a lawyer, for adhering to regulations
and professional standards. Vukmirovic cannot be faulted as
a client for not knowing what those regulations and profes-
sional standards were.

The history of the statutory provisions shows that Con-
gress’ decision to excuse an alien’s absence only for “excep-
tional circumstances” was “in response to a serious problem
of aliens deliberately failing to appear for hearings and thus
effectively extending their stay in this country.” Kaweesa, 450
F.3d at 68. That problem was not at all present here, given
Vukmirovic’s diligent pursuit of his remedies throughout the
lengthy procedural history of this case. This history distin-
guishes Vukmirovic from those petitioners who claimed “ex-
ceptional circumstances” in ordinary situations, such as
forgetting the time of the hearing, getting stuck in traffic, or
simply not receiving the notice letter. See Valencia-Fragoso,
321 F.3d at 1205; Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.
1997) (finding no exceptional circumstances where petitioner
claimed he did not receive letter noticing hearing and pres-
ented no other facts suggesting a compelling situation);
Sharma v. INS, 89 F.3d 545, 546-48 (9th Cir. 1996) (no
exceptional circumstances where petitioner one hour late due
to traffic). There is nothing exceptional or compelling about
mere tardiness.
13664 VUKMIROVIC v. HOLDER
While the probability of relief is a relevant variable to con-
sider, see Valenica-Fragoso, 321 F.3d at 1205-06, it has little
significance here. Because Vukmirovic has never been given
a meaningful opportunity to present his asylum case, there is
no record on which to assess the strength or weakness of his
underlying claim. Moreover, as almost 20 years have passed
since he filed his asylum application, we cannot even specu-
late on the merits of his claim with any accuracy. Neither the
IJ nor the BIA has looked at the merits.

[6] The BIA may have discounted the significance of his
diligent pursuit of relief that followed the original denial of
his asylum application in 2002. The BIA looked back and
suggested that he may not have been diligent in his pursuit of
an asylum hearing because he missed a 1997 adjustment of
status interview. Why he missed that interview is not in the
record, and in any event it occurred well before our decision
in Vukmirovic I. Since then the record demonstrates prompt
action. Following his arrest — when he learned for the first
time he had been ordered deported in absentia — Vukmirovic
acted immediately to contact his lawyer, who in turn acted as
promptly as he could under the circumstances to file a duly
authorized motion to reopen and then pursue this appeal.
There has thus been no lack of diligence to detract from the
claim of exceptional circumstances. See In re B-A-S-, 22 I. &
N. Dec. at 59 (“Although diligence [in filing a motion to
reopen] is not a statutory requirement, we find that [a] lack of
diligence is a factor that undercuts [a] respondent’s claim”
that exceptional circumstances were present.).

[7] In sum we agree with Vukmirovic that “[t]his is a
highly unusual case” that compels a finding of exceptional
circumstances. See Singh, 295 F.3d at 1038. Unlike the gar-
den variety of cases where an alien asks this court to excuse
his negligent or deliberate absence from a deportation or
removal hearing, Vukmirovic did not “merely seek[ ] to delay
the inevitable.” See id. at 1039. He rather had every incentive
to attend his hearing. The BIA failed to consider the unique
 VUKMIROVIC v. HOLDER 13665
qualities of this case and incorrectly held that aliens seeking
discretionary relief can never demonstrate “exceptional cir-
cumstances.” For these reasons it abused its discretion in
denying the motion to reopen. We remand this case to — at
long last— allow Vukmirovic an opportunity to present his
asylum case.

Petition for review GRANTED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent. I am in complete and total disagree-
ment with the majority’s conclusion that the facts of this case
present an extraordinary circumstance. Stripped to its essence,
the Petitioner’s story is one of an unexplained disappearance
resulting in his failure to appear at his removal proceeding.
Coupled with the Petitioner’s disappearance was his new
counsel’s failure to file a notice of appearance with the immi-
gration court, thereby eliminating the possibility of his receiv-
ing notice of the impending proceeding.

The majority characterizes these facts as “ironic.” See
Majority Opinion, p. 13662. In my view, a more accurate
description of the Petitioner’s failure to maintain contact with
his attorney and the immigration court is “derelict.” Whether
an irony or a dereliction, there is nothing extraordinary about
these facts.

I am not persuaded that either Ranjit Singh v. INS, 295 F.3d
1037, 1040 (9th Cir. 2002) or Chete Juarez v. Ashcroft, 376
F.3d 944, 947 (9th Cir. 2004) supports a remand under the
facts of this case. In Ranjit Singh, although tardy, the Peti-
tioner actually appeared at the proceeding. See Ranjit Singh,
295 F.3d at 1038-39. More importantly, as the majority
acknowledges, see Majority Opinion, p. 13659-60, the Peti-
tioner in Ranjit Singh had an approved visa petition and
13666 VUKMIROVIC v. HOLDER
would not have been deported had he appeared at the deporta-
tion proceeding. See Ranjit Singh, 295 F.3d at 1039. In con-
trast, Predrag Vukmirovic, the Petitioner in this case, did not
attend the proceeding at all. Nor was he the beneficiary of an
approved visa petition. The most Vukmirovic could hope for
was a discretionary grant of asylum. See Vukmirovic v. Ash-
croft, 362 F.3d 1247, 1249 (9th Cir. 2004). The very case
relied on by the majority and authored by the same writer
made a point of noting that no exceptional circumstances
would exist where the “only possibility of relief from deporta-
tion . . . was a discretionary grant of asylum.” Ranjit Singh,
259 F.3d at 1039-40. Vukmirovic’s circumstances bear little
resemblance to those deemed extraordinary in Ranjit Singh.

Similarly, in Chete Juarez, we determined that exceptional
circumstances existed. A major factor in the determination
was the likelihood that the Immigration Judge would have
granted Chete Juarez the relief she sought, suspension of
deportation. No parallel likelihood exists for Vukmirovic.

The majority accuses the Board of Immigration Appeals
(BIA) of interpreting Valencia-Fragoso v. INS, 321 F.3d 1204
(9th Cir. 2003) (per curiam) “as holding that a petitioner
could effectively never demonstrate that exceptional circum-
stances are present as long as the petitioner is seeking a dis-
cretionary form of relief.” Majority Opinion, p. 13661
(emphasis in the original). Not so. The BIA did nothing other
than the panel in Ranjit Singh did—consider the discretionary
relief sought as a factor that weighed against a finding that
extraordinary circumstances existed. See Ranjit Singh, 295
F.3d at 1039-40.

In sum, the majority stretches our precedent to grant relief
in this case that bears no resemblance to the facts of Ranjit
Singh or Chete Juarez. In keeping with our precedent, I would
deny Vukmirovic’s petitition. Accordingly, I respectfully dis-
sent.