United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 20, 2005
IN THE UNITED STATES COURT OF APPEALS March 14, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 04-60242
__________________________
LUIS ENRIQUE ALARCON-CHAVEZ,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
___________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A78 976 454)
___________________________________________________
Before JONES, WIENER, and CLEMENT, Circuit Judges.
WIENER, Circuit Judge:
Petitioner Luis Enrique Alarcon-Chavez (“Petitioner”) appeals
the decision of the Board of Immigration Appeals (“BIA”) upholding
without reasons or opinion, both the Immigration Judge’s (“IJ”)
order of deportation in absentia and the IJ’s denial of
Petitioner’s motion to reopen. We grant the petition, reverse both
orders, and remand with instructions.
I. FACTS AND PROCEEDINGS
A citizen of Cuba, Petitioner crossed the border at
Brownsville, Texas in March 2002 without proper entry documents and
was placed in removal proceedings. Three days later, the
Immigration and Naturalization Service, now Department of Homeland
Security (“DHS”), found that Petitioner had a credible fear of
returning to Cuba and paroled him into the United States the
following day. Petitioner subsequently applied for asylum,
withholding of removal, and relief under the Convention Against
Torture.
Although Petitioner had appeared timely for several prior
hearings, on January 30, 2003 he arrived in the courtroom twenty
minutes late for his 8:30 a.m. asylum hearing. According to his
uncontradicted affidavit testimony, Petitioner had been residing in
Austin and making the trip to San Antonio by car for all previous
hearings. For those hearings, Petitioner’s uncle had driven him to
the San Antonio courthouse. On January 30th, however, Petitioner
had to travel on his own without help from his uncle.
Traveling on I-35, Petitioner intended to take the “Corpus
Christi” exit, but mistakenly took the adjoining “N. Alamo” exit,
because he had become confused in the high-density, rush-hour
traffic on the interstate. This resulted in his heading in the
wrong direction for a brief period. As a result, Petitioner
arrived at the courthouse at 8:44, while the IJ was still on the
bench. By the time Petitioner entered the courtroom at 8:50,
however, the IJ had declared that Petitioner had “failed to appear”
for the hearing, found him removable, issued an order of
deportation in absentia, and exited the courtroom. Petitioner
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states, and the government does not contest, that he arrived at the
courtroom no more than five minutes after the IJ had issued his
order and left; and that the IJ, who by then was just across the
hall from the courtroom, was notified immediately of Petitioner’s
presence but refused to return and proceed with the hearing.
Petitioner promptly filed a timely motion to reopen the
removal proceeding and to rescind the in absentia removal order.
The IJ denied the motion, ruling that Petitioner did not establish
“exceptional circumstances” for his “failure to appear.” On appeal
to the BIA, the IJ’s decision was affirmed without opinion.
Petitioner seeks review of the BIA’s decision. He argues in
the alternative that (1) as a matter of law his arrival at the
courtroom twenty minutes late was not a “failure to appear,” and
(2) even if it were, the IJ and BIA erred in denying his motion to
reopen because he had demonstrated exceptional circumstances for
his failure to appear at the scheduled hearing precisely at 8:30
a.m. As we conclude that it was legal error, and therefore abuse
of discretion, to hold that Petitioner’s twenty-minute tardiness
constituted a failure to appear, we do not reach Petitioner’s
alternative argument regarding the question of exceptional
circumstances.
II. ANALYSIS
We generally review only the BIA’s decision in immigration
proceedings because the BIA conducts a de novo review of the
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administrative record.1 When the BIA affirms the IJ’s decision
without an opinion, however, we review the IJ’s decision.2 The
denial of a motion to reopen is reviewed for abuse of discretion,
and the determinations of law are reviewed de novo.3 It is by
definition an abuse of discretion when an IJ makes an error of law4
or “has considered the wrong factors in applying his discretion
(the judgment call was made as to issues or factors not within the
scope of his discretionary powers).”5
An order of removal may be entered in absentia if (1) the
alien is properly notified of the hearing date and time, yet fails
to attend the scheduled hearing, and (2) the DHS is able to
establish that the alien is removable.6 We are convinced beyond
cavil that there was no failure to attend in this instance, so we
grant the petition. We recognize the limited nature of our review
of determinations by an IJ or the BIA, but we are not left
completely fettered and unable to address what amounts to a clear
abuse of discretion —— an arbitrary exercise of judicial fiat at
the expense of a powerless alien whom the DHS had already found to
1
De Morales v. INS, 116 F.3d 145, 147 (5th Cir. 1997).
2
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
3
De Morales, 116 F.3d at 147.
4
United States v. Lipscomb, 299 F.3d 303, 338 (5th Cir. 2002)
(quoting Koon v. United States, 518 U.S. 81, 100, (1996)).
5
Id. at 339 (quoting 1 STEVEN ALAN CHILDRESS & MARTHA S. DAVIS,
FEDERAL STANDARDS OF REVIEWS § 4.01(A) (3d ed. 1999).
6
8 U.S.C. § 1229a(b)(5)(A).
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have a credible fear of returning to Cuba.
Petitioner made the unfortunate but fully understandable
mistake of taking the wrong exit off the busy interstate on the way
to his hearing, and as a result was a mere twenty minutes late in
arriving in the courtroom. He had been on time to all of his prior
hearings, a fact noted both by Petitioner and by the government in
its brief. On arrival, he made every effort to get the IJ to
resume his hearing, and when he learned that the IJ steadfastly
refused to conduct the hearing, Petitioner promptly filed a motion
to reopen a mere five days later.
This is not even a case of a petitioner who was one hour late7
or who made no effort to avoid entry of an in absentia order then
failed to contact the court for more than two weeks after the
deportation order was entered.8 Rather it is an example of what
the late Chief Judge of this court, John R. Brown, frequently
referred to as “the curse of the robe” when cautioning judges to
remember that they are appointed, not anointed.
Our holding today will not require IJs to tolerate
substantially tardy litigants, or to entertain late attempts to
excuse true failures to appear. When, however, (1) there is no
failure but only a slight tardiness, (2) the IJ is either still on
the bench or recently retired and still close by, and (3) the time
7
See Sharma v. I.N.S., 89 F.3d 545 (9th Cir. 1996).
8
See De Morales, 116 F.3d at 149; see also Chen v. I.N.S., 85
Fed. Appx. 223, 224 (2d Cir. 2003) (unpublished) (petitioner waited
almost a month after the scheduled hearing date to move to reopen).
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of the immigrant’s delayed arrival is still during “business
hours,” it is an abuse of discretion —— if not worse —— to treat
such slight tardiness as a non-appearance.9 “Given the severity of
the consequence, the minimal procedural interference, and the
serious claim for relief from deportation”10 via asylum, the refusal
of the IJ to step back across the hall and into the hearing room to
consider Petitioner’s case is unacceptable. The applicable statute
does not encompass such a draconian result from a momentary de
minimis delay.11
III. CONCLUSION
We GRANT the petition and REMAND to the BIA with instructions
to remand this matter for Petitioner to present his claims, leaving
to the discretion of the BIA whether to remand to a different IJ.
9
See Jerezano v. I.N.S., 169 F.3d 613 (9th Cir. 1999). Cf.
Nazarova v. I.N.S., 171 F.3d 478, 485 (7th Cir. 1999) (suggesting
that it is an abuse of discretion for an IJ to treat a late
appearance as a non-appearance when the delay is brief and the
disruption minimal); Romani v. I.N.S., 146 F.3d 737, 739 (9th Cir.
1998) (when the petitioners were in the courthouse but went to the
wrong courtroom, it was not a “failure to appear” under the
predecessor statute to § 1229a(b)(5)(A)); Chen, 85 Fed. Appx. at
225 (sympathizing with the holdings in Jerezano and Nazarova and
suggesting that in appropriate circumstances the second circuit
might hold the same).
That the IJ was still on the bench at the time the petitioner
arrived in Jerezano is a distinction without a difference; a man’s
fate should not turn on whether he had the good fortune of other
hearings being scheduled to begin subsequent to his own.
10
Thomas v. I.N.S., 976 F.2d 786, 791 (1st Cir. 1992) (Breyer,
J., dissenting).
11
Nazarova, 171 F.3d at 485.
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Alarcon-Chavez v. Gonzales
Combined Opinion