United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2158
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Candelaria Dominguez-Capistran, *
*
Petitioner, *
* Petition for Review of a
v. * Decision of the Board of
* Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
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Submitted: February 18, 2005
Filed: July 8, 2005
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Before BYE, HEANEY, and MELLOY, Circuit Judges.
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HEANEY, Circuit Judge.
This is an immigration case in which Candelaria Dominguez-Capistran
petitions for review of a Final Order of the Board of Immigration Appeals (BIA)
dismissing her appeal from an immigration judge’s (IJ) decision, which denied her
motion to re-open an in absentia removal order applied against her when she failed
to appear at her scheduled cancellation of removal hearing.
Dominguez-Capistran is a native and citizen of Mexico who is charged with
having entered the United States without inspection in January 1988. She is a 34-
year-old single mother of four children, ages 13, 12, 11, and 6, all of whom were born
in the United States. From 1995 through 2001, Dominguez-Capistran worked as a
shift manager at Taco Bell. She is currently employed as a factory worker at a
company in Eden Prairie, Minnesota. She owns a home in Columbia Heights,
Minnesota, and has diligently paid state and federal taxes in this country.
The Immigration and Naturalization Service (INS) issued a Notice to Appear
on September 23, 1999, charging Dominguez-Capistran with removability based on
8 U.S.C. § 1182(a)(6)(A)(i) as an alien who entered the United States without being
admitted or paroled. Dominguez-Capistran admitted the allegations set forth in the
notice, and conceded removability at a hearing on October 10, 2001. On
December 11, 2001, at a separate hearing, the IJ verbally informed Dominguez-
Capistran and her counsel, Herbert Igbanugo, that the cancellation of removal hearing
was set for January 8, 2003. The IJ provided written notice of the hearing to counsel
on the same date. Neither Dominguez-Capistran nor Igbanugo appeared for the
scheduled final removal hearing. Accordingly, the IJ held that removability had been
established by clear and convincing evidence, in accordance with 8 U.S.C. §
1229a(c)(3)(A). The IJ ordered Dominguez-Capistran removed in absentia to
Mexico.
On April 8, 2003, Dominguez-Capistran timely filed a motion to open and
rescind the in absentia removal order. She contended that exceptional circumstances
caused her failure to appear at her scheduled hearing on January 8, 2003. She asserts
she and her children suffered physical abuse from her husband, which prevented her
from receiving adequate oral notice of the new hearing and remembering the date of
the scheduled hearing because she was unduly distracted by her home circumstances.
Furthermore, shortly after the hearing on December 11, 2001, Dominguez-Capistran
moved her residence three times to escape her husband’s abuse. She informed her
attorney’s office each time she moved, but her attorney did not have the address
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changes recorded in his file. Consequently, Dominguez-Capistran did not receive a
reminder of the January 8, 2003 hearing.
Counsel states he asked his secretary to record the hearing date in his calendar,
but she did not do so. He claims he sent a copy of the court’s written notice of the
scheduled January 2003 hearing to Ms. Dominguez-Capistran, but acknowledges she
did not receive the notice because it was incorrectly addressed. Counsel also
assigned Dominguez-Capistran’s file to a law clerk to manage, but the clerk was
terminated in May 2002, and left the firm without informing counsel of the status of
his files. Dominguez-Capistran asserts counsel failed to return her calls when she
inquired about the upcoming hearing date, and he apparently does not deny that he
did not return her phone calls.
The IJ denied Dominguez-Capistran’s motion to re-open and rescind the in
absentia removal order, and on April 13, 2004, the BIA affirmed the IJ without
opinion. Dominguez-Capistran timely filed her Petition for Review of the BIA’s
decision on May 13, 2004.
We review the IJ’s decision as the final agency action. The Attorney General
is accorded considerable discretion in deciding whether to reopen or reconsider a
case, and the court reviews the denial of a motion to reopen for abuse of discretion.
Nativi-Gomez v. Ashcroft, 344 F.3d 805, 807 (8th Cir. 2003). Dominguez-
Capistran’s eligibility for cancellation of removal is not considered at this time.
A motion to rescind an in absentia removal order may be granted upon a
showing that the undocumented immigrant did not receive proper notice or that her
failure to appear was due to “exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C).
Proper notice is defined as written notice given in person to respondent or
respondent’s counsel of record. 8 U.S.C. § 1229(a)(1). On December 11, 2001, the
court, through an interpreter, orally informed Dominguez-Capistran of the new
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hearing date and the consequences if she failed to appear. The court also gave
counsel a written notice of the hearing date, which is considered personal service on
the respondent. When the court asked Dominguez-Capistran whether she had any
questions about her upcoming hearing, she answered that she did not. We conclude
that Dominguez-Capistran received sufficient notice of the hearing.
Exceptional circumstances are defined in 8 U.S.C. § 1229(e)(1) as being those
circumstances beyond the control of the alien, such as serious illness of the
respondent, or serious illness or death of the respondent’s spouse, child, or parent.
The IJ determined that Dominguez-Capistran had not established that her health, or
that of her children, had impeded her appearance at the hearing. He found that
counsel’s and her disorganization resulted in their failure to appear, and held there
were no exceptional circumstances that justified reopening the matter.
The exceptional circumstances restrictions were adopted in response to a
growing trend in which some aliens deliberately did not appear for hearings to extend
their stay in the United States. This imposed considerable cost to the INS and
hindered its efforts to efficiently consider requests for discretionary relief. See
Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003). Where, however, it is apparent
the alien intended to appear at the missed hearing and had appeared at all prior
hearings, some courts have extended the exceptional circumstances restrictions to
include events unrelated to the health and well-being of the respondent and her
immediate family members. See id. at 72-73 (holding that counsel’s failure to appear
at a petitioner’s hearing and petitioner’s delayed arrival at the hearing due to traffic
congestion fell within the exceptional circumstances exception); Quintana-Gonzalez
v. Ashcroft, 110 Fed. Appx. 793, 2004 WL 2203822 (9th Cir. Sept. 21, 2004)
(unpublished) (holding that where respondent’s attorney notified the court in advance
that a religious holiday prevented [petitioner’s] appearance at respondent’s hearing,
and the court had no evidence that said hearing had been rescheduled, petitioner had
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demonstrated the requisite exceptional circumstances to rescind the in absentia
removal order).
More relevant to the case before us, however, courts have held that ineffective
assistance of counsel is an exceptional circumstance. See Lo v. Ashcroft, 341 F.3d
934, 939 (9th Cir. 2003) (holding that where counsel’s secretary misinformed
petitioners of the date of their cancellation of removal hearing, causing them to miss
their hearing, ineffective assistance of counsel rose to the level of exceptional
circumstances); Chen v. INS, 58 Fed. Appx.327, 2003 WL 840214 (9th Cir. Mar. 6,
2003) (unpublished) (holding that ineffective assistance of counsel, where the
attorney instructed the alien to go home rather than attend a hearing, was considered
an exceptional circumstance). We conclude that the circumstances in this case were
exceptional because Dominguez-Capistran was subjected to ineffective assistance of
counsel. Her attorney failed to send the notice of hearing to her correct address
despite numerous calls she made to his law firm to inform him of her changes of
address. Counsel failed to place the hearing on his calendar, lost track of Dominguez-
Capistran’s file, and did not return her phone calls when she inquired about her
hearing date. He was aware of Dominguez-Capistran’s abusive home situation and
her distracted state of mind at the December 2001 hearing, yet failed to maintain a
clear line of communication between himself and his client regarding her upcoming
cancellation of removal hearing. Counsel was fully aware of all that Dominguez-
Capistran had to lose1 by failing to appear at this important hearing, but did not
1
Based on the record before us, Dominguez-Capistran appears to have a case
for cancellation of removal. Section 1229b gives the Attorney General discretion to
cancel a removal order on behalf of an alien who shows: 1) her continuous physical
presence in the United States for ten years immediately preceding the date of
application for cancellation of removal; 2) her good moral character during such a
period; 3) she has no convictions for certain listed offenses; and 4) her removal would
cause “exceptional and extremely unusual hardship to the alien’s spouse, parent, or
child, who is a citizen of the United States or an alien lawfully admitted for
permanent residence.” 8 U.S.C. § 1229b(b)(1). The final decision is for the Attorney
General to make.
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conduct himself in a reasonably professional manner in managing her case. His
negligence was utterly beyond Dominguez-Capistran’s control. We find it was an
abuse of discretion for the BIA to conclude that there were no exceptional
circumstances that prevented Dominguez-Capistran from appearing at the
cancellation of removal hearing, and to deny her motion to reopen. Accordingly, we
vacate the denial of the motion to reopen and remand to the agency with directions
that Dominguez-Capistran be permitted to present her claims for cancellation of
removal.
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