United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 20, 2006
Charles R. Fulbruge III
Clerk
No. 03-61015
____________________
JOHN O WILLIAMS-IGWONOBE,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review from an Order of
the Board of Immigration Appeals
____________________
Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
John Williams-Igwonobe (“Petitioner”) petitions for review
from the Board of Immigration Appeals (“BIA”), which affirmed the
denial of his motion to reopen. The Immigration Judge (“IJ”)
applied the rules governing motions that seek to reopen orders
entered in absentia. This case is controlled by our decision in
Wellington v. INS, 108 F.3d 631 (5th Cir. 1997). Because there was
no valid in absentia hearing under Wellington, we grant the
petition and vacate the BIA’s order.
I. BACKGROUND
Petitioner, a native of Nigeria, entered the United States as
a nonimmigrant student in 1977. In 1986, Petitioner married a
United States citizen, Linda Williams-Igwonobe. He was convicted
of conspiring to commit mail fraud in 1988, and the Immigration and
Naturalization Service commenced deportation proceedings against
him. In 1990, Petitioner and his wife had a son, Christopher
Williams-Igwonobe. That same year, Petitioner sought to adjust his
status based on an approved I-130 visa petition filed by his wife.
Petitioner’s criminal conviction prevented him from adjusting
his status. Aliens convicted of crimes involving moral turpitude
are inadmissible. 8 U.S.C. § 1182(a)(9) (1988). The Attorney
General, however, has the discretion to waive inadmissibility on
several grounds. 8 U.S.C. § 1182(h). Petitioner sought waiver
under subsection (h)(1)(B), on the ground that deportation would
cause “extreme hardship” to an immediate relative who is a citizen
or permanent resident.
On November 4, 1991, the IJ denied Petitioner’s request for
waiver, ordering him deported. Petitioner appealed. For unknown
reasons, the case languished on the BIA’s docket for nearly seven
years. In the intervening period, Petitioner lost contact with his
attorney and did not notify the immigration authorities about his
change of address. On September 15, 1998, the BIA ruled in favor
of Petitioner and remanded to the IJ.
2
Notice was mailed to Petitioner’s attorney, Theodore
Jakaboski. Jakaboski moved to withdraw, claiming that he had no
contact with Petitioner since 1991 and had no current address for
him. The IJ granted Jakaboski’s motion to withdraw and mailed
notice of a hearing set for February 16, 1999 to Petitioner’s old
address. Petitioner did not receive actual notice of the hearing
and failed to appear. The IJ deemed all claims for relief
abandoned and ordered Petitioner deported.
Three years later, Petitioner discovered the 1999 order. He
moved for reopening on March 25, 2002. In an attached affidavit,
Petitioner claimed that he had notified Jakaboski of his new
address in 1994 and that Jakaboski had agreed to forward this
information to the immigration authorities. The IJ denied the
motion to reopen, holding that Petitioner had not shown “reasonable
cause” for failing to attend the 1999 hearing. The BIA dismissed
Petitioner’s appeal, and this petition followed.
II. STANDARD OF REVIEW
We review the denial of a motion to reopen “under a highly
deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404
F.3d 295, 304 (5th Cir. 2005). Ordinarily, this Court reviews only
the BIA’s decision and does not consider the IJ’s ruling. Here,
however, the BIA essentially adopted the IJ’s decision. It stated
that the “conclusion reached by the Immigration Judge . . . was
3
correct” and did not add reasoning of its own. Under such
circumstances, we review the IJ’s decision. Mikhael v. INS, 115
F.3d 299, 302 (5th Cir. 1997).
III. DISCUSSION
Petitioner argues that the IJ incorrectly applied the
“reasonable cause” standard to his motion to reopen. We agree,
finding this case controlled by Wellington 108 F.3d 631.
The statute in place when Petitioner’s deportation proceedings
began provides for in absentia hearings. If an alien fails to
appear for a scheduled hearing, the immigration judge may “proceed
to a determination in like manner as if the alien were present.”
8 U.S.C. § 1252(b) (1988). Aliens denied discretionary relief in
an in absentia hearing may still move for reopening. Wellington,
108 F.3d at 635. The alien is required to demonstrate “reasonable
cause” for failing to attend the previous hearing. In re Haim, 19
I. & N. Dec. 641, 642 (1988).1
In Wellington, this Court held that a showing of “reasonable
1
Current regulations provide a stricter standard. A motion
to reopen an order entered in absentia may only be granted if the
alien’s failure to attend was due to “exceptional circumstances
beyond the control of the alien.” 8 C.F.R. § 1003.23(b)(4). The
IJ determined that the “reasonable cause” rather than
“exceptional circumstances” standard applied because Petitioner’s
deportation proceedings were conducted under 8 U.S.C. § 1252(b)
(1988) rather than 8 U.S.C. § 1252b (Supp. II 1990). See
generally In re Cruz-Garcia, 22 I. & N. Dec. 1155 (1999).
Neither party disputes the decision below that the “exceptional
circumstances” standard is inapplicable to the case at bar.
4
cause” may be a prerequisite to reopening only when an underlying
in absentia hearing was held. Id. at 635–36. Furthermore, the
Wellington Court explained that “an in absentia hearing is a
hearing on the merits of the record before the administrative
court.” Id. at 636 (emphasis in original).
When Petitioner failed to attend the scheduled proceeding in
1999, the IJ issued a boilerplate order stating that all claims for
relief had been “abandoned.” As in Wellington, there is no
indication that the IJ considered the merits of Petitioner’s
claims. The IJ did not consider whether the impact on Petitioner’s
wife and son amounted to extreme hardship such that waiver of
inadmissibility was warranted under section 1182(h). An order
deeming relief abandoned, though authorized under BIA regulations,
is not the equivalent of a determination reached in an in absentia
hearing because it is not a decision on the merits. Id. “Because
no in absentia hearing was held, the rule that in absentia
determinations may only be reopened upon a showing of ‘reasonable
cause’ is inapplicable.” Id.
At oral argument, the Government contended that any error in
applying the “reasonable cause” standard was not prejudicial. See
Beltran-Resendez v. I.N.S., 207 F.3d 284, 287 (5th Cir. 2000)
(holding that statutory error in deportation proceedings was
harmless). It argued that Petitioner failed to introduce any
evidence of extreme hardship to an immediate relative to support
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his application for a section 1182(h) waiver. We disagree.
Petitioner has been married to a U.S. citizen since 1986. He
introduced seven affidavits from friends and relatives attesting to
the bona fides of the marriage. Furthermore, Petitioner and his
wife have a son, also a U.S. citizen, who was twelve years old when
the motion to reopen was denied. Record evidence also suggests
that Petitioner’s wife is an “unemployed housewife” and that she
and their son rely on Petitioner’s income and health insurance. As
in Wellington, Petitioner was prejudiced because he introduced
substantial evidence in support of a claim that has never been
considered properly on the merits. 108 F.3d at 637.2
IV. CONCLUSION
Accordingly, the IJ’s decision that denied Peitioner’s motion
to reopen under the “reasonable cause” standard was an abuse of
discretion. The petition for review is GRANTED. We VACATE and
REMAND for proceedings in accordance with this opinion. See INS v.
Orlando Ventura, 537 U.S. 12, 16–17 (2002).
2
Because the IJ’s erroneous use of the “reasonable cause”
standard disposes of this case, we do not consider additional
claims of error raised by Petitioner.
6