Kaweesa v. Gonzales

United States Court of Appeals
For the First Circuit

No. 04-2548

JULIETTE KAWEESA,
Petitioner,

v.

ALBERTO R. GONZÁLES,* ET AL.,
UNITED STATES ATTORNEY GENERAL,
Respondents.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,
Hill,** Senior Circuit Judge,
and Howard, Circuit Judge.

Ara H. Margosian, II, with whom Law Office of Ara H.
Margosian, P.C. was on brief, for petitioner.
Francis W. Fraser, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, with whom Peter D. Keisler,
Assistant Attorney General, and Donald E. Keener, Deputy Director,
were on brief, for respondents.

June 9, 2006

*
Alberto R. Gonzáles was sworn in as United States Attorney
General on February 3, 2005. We have therefore substituted
Attorney General Gonzáles for John Ashcroft as the respondent. See
Fed. R. Civ. P. 25(d)(1); Fed. R. App. P. 43(c)(2).
**
Of the Eleventh Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. This case was originally

transferred here by the district court for review of a decision by

the Board of Immigration Appeals ("BIA") denying Petitioner

Juliette N. Kaweesa's Third Motion to Reopen proceedings following

an in absentia removal order. The passage of the REAL ID Act of

2005, Pub. L. 109-13, 119 Stat. 231, changed the scope of our

review and put before us Kaweesa's claims regarding her First

Motion to Reopen. After careful consideration we reverse and

remand.

I. Factual Background and Proceedings Below1

Kaweesa served as a Christian minister in a well-known

preaching and music ministry in Kampala, Uganda, working primarily

with women and children. She was active with Human Rights Africa

and shared that group's message of respect for women with other

women in her ministry. Kaweesa's husband, Stephen, was the pastor

of the Heritage Revived Church in Uganda until he was taken from

their home by government security officers in 1994. He was never

heard from again and is presumed dead. Kaweesa believes that her

husband and brother were involved in a rebel freedom movement. She

also has information that both her parents and her brother have

been killed. Soon after her husband disappeared, Kaweesa was taken

by government security officers to military barracks outside of

1
We take the facts regarding Kaweesa's experiences in Uganda from
her asylum application.

-2-
Kampala, where she was interrogated, beaten, and raped by several

different men over the course of three weeks.

Kaweesa entered the United States on August 2, 1994, on

a B-2 visa obtained to attend a religious conference. She

overstayed her visa and filed for asylum, withholding of removal,

and relief under the Convention Against Torture ("CAT") in October

1997. At her February 22, 1999 interview with the Immigration and

Naturalization Services ("INS"),2 Kaweesa conceded that she was

removable. She explained that she waited longer than one year to

apply for asylum because during that time she held out hope that

she could safely return to her country. On February 23, 1999, the

INS issued Kaweesa a Notice to Appear before an Immigration Judge

("IJ") on May 13, 1999, noting that she could request asylum again

at that hearing. Kaweesa did not appear at the scheduled hearing,

and the IJ entered an in absentia removal order. On May 19, 1999,

Kaweesa filed a pro se letter seeking to reopen her proceedings

("First Motion to Reopen"). According to an affidavit filed by

Kaweesa, she got the dates of her hearing mixed up and thought that

the hearing was on May 17.3 After she returned home from work on

2
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement.
For simplicity, we refer to the agency throughout this opinion as
the INS.
3
In the affidavit, Kaweesa stated that she had even asked her
employer for a day off on May 17 so that she could attend the
hearing.

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May 15, she found a letter in her mailbox informing her that she

had missed her hearing and that an in absentia removal order had

been entered. She went down to the immigration court on May 17 and

asked to speak with the IJ. She was told by a clerk that her only

remedy was to file a motion to reopen, which she did on May 19.

The INS did not file a response and the motion was

therefore deemed unopposed. However, the IJ denied the motion

based on a finding that Kaweesa had not demonstrated the requisite

"exceptional circumstances" warranting reopening under § 240(e)(1)

of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229a

(e)(1).4 Kaweesa timely appealed to the BIA, which affirmed the

IJ's decision without opinion on May 6, 2002. Kaweesa did not

appeal the BIA's decision to this Court, apparently due to the

fault of her counsel.5

4
We explain below the procedure for moving to reopen following an
in absentia removal order, as well as what constitutes "exceptional
circumstances."
5
Kaweesa was represented by attorney Daniel F. Cashman before the
BIA. In May 2002, Cashman informed Kaweesa of the BIA's decision
by letter but never informed her that he no longer wished to
represent her or of her right to appeal the decision to this Court.
He also stopped returning her calls. In June 2002, Kaweesa
consulted with Alex Almondel, who held himself out to be an
immigration attorney and told her that he filed an appeal with the
BIA (not the First Circuit). In April 2003, Kaweesa learned from
a Boston Globe article that Almondel was not a licensed attorney in
Massachusetts and had been misrepresenting himself as an
immigration attorney. She retained attorney Elizabeth Broderick,
who discovered that Almondel never filed anything. Broderick filed
the Second Motion to Reopen on July 29, 2003.

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 On June 17, 2003, Kaweesa was taken into custody by the

INS. On July 29, 2003, Kaweesa filed another motion to reopen with

the BIA ("Second Motion to Reopen"). This motion did not address

her failure to attend her removal hearing, but rather alleged that

changed circumstances in Uganda and newly acquired evidence made

her eligible for asylum and for relief under the CAT. The evidence

included: (1) a report from Kaweesa's counsel, based on a telephone

conversation, that in August 2001 Kaweesa's son Fred Sempijja was

beaten by government soldiers who wished to learn of his mother's

whereabouts, along with a photograph of her son showing a head

wound; (2) a letter to Kaweesa dated February 12, 2003, from Father

John Musisi of the Christ Church Parish in Gulu, Uganda, warning

that security in Uganda "is still growing worse" and advising

Kaweesa not to return "for some time"; (3) two letters from

reverends of Massachusetts churches stating that before Kaweesa

came to the United States, they knew of her ministry and

evangelical activities in Uganda; (4) a news article dated

April 11, 2003, on the Uganda Human Rights Commission, which had

reported numerous incidents of government torture in 1999-2001; and

(5) a 2002 U.S. State Department Report on Human Rights Practices

in Uganda, which found that government forces arbitrarily arrested

and detained citizens.

On November 12, 2003, the BIA denied the Second Motion to

Reopen as numerically and time-barred under 8 C.F.R. § 1003.2

-5-
(c)(2), and as not falling within the regulatory exception to the

time and numerical limitations in cases of motions to reopen to

apply for asylum based on changed country circumstances under 8

C.F.R. § 1003.2(c)(3)(ii).6 The BIA ruled that in order to come

within the regulatory exception, Kaweesa had to establish prima

facie eligibility for asylum or withholding of removal. The BIA

found that the evidence was insufficient to establish eligibility

for asylum, because reports of the son's beating were

uncorroborated by medical records or "even an affidavit from him"

and because it could have been presented to the BIA earlier. Based

on counsel's advice, Kaweesa did not appeal the BIA's decision to

this Court.

On April 15, 2004, still in custody, Kaweesa filed

another motion to reopen with the BIA ("Third Motion to Reopen"),

once again based upon "newly discovered evidence and changed

country conditions in her native Uganda." The motion argued that

the "unavailable and undiscoverable material evidence -- taken in

conjunction with the evidence already in the record -- demonstrates

Kaweesa's prima facie eligibility for relief under asylum law,

6
Under the regulations, a party may in general file only one
motion to reopen, and that motion must be filed within 90 days
after the final administrative decision is entered. See 8 C.F.R.
§ 1003.2(c)(2). There is an exception to this general rule if the
motion is filed to apply for asylum or withholding of removal due
to changed country conditions, and if the evidence provided is
material and could not have been discovered at the time of the
prior hearing. See id. § 1003.2(c)(3)(ii).

-6-
withholding of removal, and [CAT]." She further argued that the

new evidence explained why she missed her May 13, 1999 hearing and

why she did not bring her claims more promptly. The evidence

submitted with this motion consisted of the following: (1) the

affidavit of Dr. Michael Grodin, psychiatrist, dated April 12,

2004, concluding based upon an interview with Kaweesa that she

"displays moderate symptoms of [Major Depressive Disorder] and

[Post-Traumatic Stress Disorder]," which frequently interfere with

memory and could have contributed to her failing to appear at her

May 13, 1999 hearing; (2) the Human Rights Watch Report, dated

March 2004, based in part on interviews with prisoners during

visits to Uganda in 2002 and 2003, reporting that "[t]he use of

torture as a tool of interrogation is foremost among an escalation

in human rights violations by Ugandan security and military forces

since 2001"; (3) the 2003 U.S. State Department Country Conditions

Report on Uganda, released on February 25, 2004, reporting that

"[t]orture by security forces and beating of suspects to force

confessions were serious problems"; (4) the affidavit of Douglas A.

Feldman, Ph.D. in Anthropology, dated April 12, 2004, discussing

the sociopolitical situation in Uganda, analyzing the above-

mentioned Human Rights Watch Report, and opining that "it is far

more likely than not that [Kaweesa] would be tortured, raped and

beaten again if she returns to Uganda"; (5) a letter from Kaweesa's

son Fred Sempijja, dated December 17, 2003, stating that his mother

-7-
had been beaten prior to her departure to the United States, and

reporting that on August 26, 2001, "men broke into [his] home and

tried to kill [him] after [he] failed to give them the whereabouts

of [his] mother"; and (6) the affidavit of Rev. Baker Katende,

Pastor of Global Evangelical Church of Waltham, Massachusetts,

dated April 9, 2004, stating that he knew Kaweesa and her husband

in the late 1980s because of their church activities in Uganda.

Kaweesa argued before the BIA that this evidence was previously

unavailable and that it established her prima facie eligibility for

asylum.

On April 16, 2004, Kaweesa also filed a habeas petition

in the district court. She argued that the IJ committed clear

legal error by failing to examine the totality of circumstances

surrounding her First Motion to Reopen. Kaweesa also argued that

the BIA's denial of her First and Second Motions to Reopen violated

her due process rights. Specifically, Kaweesa claimed that the BIA

failed to consider her claim that she was prima facie eligible for

withholding of removal and relief under the CAT. The habeas

petition did not challenge the BIA's denial of her Third Motion to

Reopen, because the BIA had not made its decision regarding the

Third Motion to Reopen when Kaweesa filed her habeas petition.

On May 3, 2004, the BIA denied Kaweesa's Third Motion to

Reopen, noting that it was numerically and time-barred under 8

C.F.R. § 1003.2(c)(2), and finding again that Kaweesa failed to

-8-
satisfy the exception to the time and numerical limitations under

8 C.F.R. § 1003.2(c)(3)(ii), because she offered "no reasonable

explanation . . . as to why relevant documentary evidence and the

attached affidavits could not have been previously discovered and

presented in a timely manner pursuant to the regulations" set forth

in 8 C.F.R. § 1003.2(c)(1). The BIA separately denied the motion

in the exercise of its "broad discretion," stating that the motion

appeared dilatory in nature, and hence fell within the Supreme

Court's admonition disfavoring legal maneuvers designed to delay

deportation. At the time of the BIA's decision, Kaweesa's habeas

case was still pending in district court.

At a May 11, 2004 hearing before the district court,

Kaweesa's counsel informed the court of the BIA's decision and of

Kaweesa's intent to pursue every avenue of relief possible, which

the court interpreted as including a direct appeal of the BIA's

denial of her Third Motion to Reopen. Although Kaweesa never

actually filed that appeal,7 the district court treated the denial

of the Third Motion to Reopen as part of the habeas case. On

November 18, 2004, the district court determined that it had habeas

jurisdiction to review Kaweesa's First Motion to Reopen.8 However,

the district court found that it had no jurisdiction to review the

7
Her counsel withdrew once again.
8
The district court determined that it did not have habeas
jurisdiction over the Second Motion to Reopen.

-9-
denial of the Third Motion because, as of the date when it

incorporated that denial into the habeas case, Kaweesa still had

the right to file a petition for direct review with this Court.

Hence, the district court transferred the entire case to this Court

under 28 U.S.C. § 1631 following a procedure we approved in Arevola

v. Ashcroft, 344 F.3d 1, 16 (1st Cir. 2003), so that we could

effect direct review of the BIA's May 3, 2004, decision.

On June 8, 2005, we heard oral arguments on the issue of

whether the BIA abused its discretion in denying Kaweesa's Third

Motion to Reopen. Upon our decision, the district court intended

to rule upon Kaweesa's habeas claims arising out of the IJ's and

BIA's denial of her First Motion. However, effective May 11, 2005,

the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, stripped

the district court of jurisdiction over Kaweesa's remaining habeas

claims, meaning that we could not transfer the case back to the

district court upon our review of the BIA's decision regarding the

Third Motion to Reopen.

Given these events, we requested supplemental briefing

from the parties in December 2005, and now review Kaweesa's

"habeas" challenges of the denial of her First Motion to Reopen as

a petition for direct review, along with her challenge of the

denial of her Third Motion to Reopen.9 We find that the denial of

9
We do not address the denial of the Second Motion to Reopen
because the district court found that it lacked jurisdiction over
that issue.

-10-
the First Motion to Reopen was based on an error of law. We

therefore reverse the IJ's denial of the First Motion to Reopen and

do not address the denial of the Third Motion to Reopen.

II.

A. Jurisdiction

Under the REAL ID Act's transfer provision, Pub. L. 109-

13, § 106(c), 119 Stat. at 311, all cases challenging final

administrative orders of removal pending in the district courts as

of May 11, 2005, were transferred to the courts of appeals for

review. We are to treat these cases as if they had been filed

pursuant to a petition for review under INA § 242, 8 U.S.C. § 1252,

except that subsection b(1), which contains time limitations on

petitions for direct review in the courts of appeals, does not

apply. See Ishak v. Gonzáles, 422 F.3d 22, 25 (1st Cir. 2005);

REAL ID Act of 2005, Pub. L. 109-13, Div. B, § 106(c), 119 Stat. at

311. We have held that this provision also applies to habeas

appeals pending in this Court. See Ishak, 422 F.3d at 30. We

therefore treat Kaweesa's habeas claim regarding the First Motion

to Reopen as a petition for direct review. Since the time

limitations on petitions for direct review do not apply to a claim

such as this, the fact that the usual time limit for a direct

appeal on this claim has long passed does not deprive us of

jurisdiction.

-11-
 This does not end our jurisdictional inquiry. Under the

INA, as amended by the REAL ID Act, we do not have jurisdiction to

review discretionary or factual determinations. See Mehilli v.

Gonzáles, 433 F.3d 86, 93 (1st Cir. 2005). Generally, we review an

IJ's decision to deny a motion to reopen for abuse of discretion.

See Herbert v. Ashcroft, 325 F.3d 68, 70 (1st Cir. 2003).

Therefore, it might appear at first that we do not have

jurisdiction over the denial of the First Motion to Reopen.10

10
Kaweesa argues that an IJ's decision on whether to grant a
motion to reopen an in absentia removal order is not discretionary
and that we therefore have jurisdiction over the denial of the
motion to reopen. Under the relevant statute, 8 U.S.C. § 1229a
(b)(5)(C):

Such an [in absentia removal] order may be rescinded only
--

(i) upon a motion to reopen filed within 180 days after
the date of the order of removal if the alien
demonstrates that the failure to appear was because of
exceptional circumstances (as defined in subsection
(e)(1) of this section), or

(ii) upon a motion to reopen filed at any time if the
alien demonstrates that the alien did not receive notice
in accordance with paragraph (1) or (2) of section
1229(a) of this title or the alien demonstrates that the
alien was in Federal or State custody and the failure to
appear was through no fault of the alien.

(emphasis added). Kaweesa argues that, although the statute says
"may," if an alien proves that she did not receive notice or was
prevented from attending by the government, the IJ would have to
grant the motion to reopen because the failure to do so would
violate the alien's due process rights. Therefore, Kaweesa argues,
the word "may" does not indicate the existence of discretion, at
least as to motions to reopen under § 1229a(b)(5)(C)(ii). Since
"may" is also used in reference to § 1229a(b)(5)(C)(i), Kaweesa
argues that it must also apply in the same way; that is, an IJ must

-12-
However, under the REAL ID Act we retain jurisdiction over

constitutional questions or questions of law. 8 U.S.C. § 1252(a)

(2)(D). Therefore, if an IJ's denial of a motion to reopen

constitutes an error of law or a violation of constitutional

rights, we may review those issues. Of course, such a decision

would also constitute an abuse of discretion. See, e.g., Wang v.

Ashcroft, 367 F.3d 25, 27 (1st Cir. 2004) (stating that we will

find an abuse of discretion if the BIA misinterprets the law).

However, the fact that we review denials of a motion to reopen for

abuse of discretion does not, in and of itself, preclude us from

reviewing at least certain aspects of that decision, since we still

retain the power to review constitutional questions and questions

of law. Thus, to the extent the IJ's decision constituted an error

of law or violation of constitutional rights, we retain

jurisdiction to review it.

B. First Motion to Reopen

Under 8 U.S.C. § 1229a(b)(5)(A), an alien who fails to

attend her hearing "shall be ordered removed in absentia if the

[INS] establishes by clear, unequivocal, and convincing evidence

that the [required] written notice was so provided and that the

alien is removable." An in absentia order of removal may be

grant an alien's motion to reopen if that alien demonstrates
"exceptional circumstances." While Kaweesa's argument is certainly
interesting, we need not reach it because our decision is based on
a question of law, over which we clearly have jurisdiction.

-13-
rescinded upon a motion to reopen filed within 180 days after the

date of the order of removal if the alien demonstrates that the

failure to appear was because of exceptional circumstances, or upon

a motion filed at any time if the alien demonstrates that he or she

did not receive notice or was in state or federal custody. Id.

§ 1229a(b)(5)(C). These restrictions were adopted in response to

a serious problem of aliens deliberately failing to appear for

hearings and thus effectively extending their stay in this country.

See Herbert, 325 F.3d at 71. The exceptional circumstances

standard is a "fairly tough one," Georcely v. Ashcroft, 375 F.3d

45, 50 (1st Cir. 2004), and will be met in only "rare cases."

Herbert, 325 F.3d at 72.

In deciding the validity of a claim of exceptional

circumstances, the "totality of the circumstances must be

considered." Id. (emphasis added). We have never explained what

"totality of the circumstances" means in this context. However,

the BIA has stated that, among the factors that may be considered

are supporting documentary evidence, the alien's efforts in

contacting the immigration court, and the alien's promptness in

filing the motion to reopen. In re B-A-S, 22 I. & N. Dec. 57, 58-

59 (BIA 1998). Other possible factors may include the strength of

the alien's underlying claim, the harm the alien would suffer if

the motion to reopen is denied, and the inconvenience the

government would suffer if the motion is granted. See, e.g., Singh

-14-
v. INS, 295 F.3d 1037, 1039-40 (9th Cir. 2002); Barseghian v. INS,

14 Fed. Appx. 806, 807-08 (9th Cir. 2001); Thomas v. INS, 976 F.2d

786, 791 (1st Cir. 1992) (Breyer, C.J., dissenting). However, we

need not catalogue every possible factor that might go into a

totality of the circumstances analysis, because, as we discuss

below, the IJ in this case did not consider any of the above

possible factors, or any other factors.

We also wish to point out that the statutory concern with

notice and exceptional circumstances is grounded in due process

considerations. See, e.g., Nazarova v. INS, 171 F.3d 478, 482 (7th

Cir. 1999). We have stated repeatedly that "'the Fifth Amendment

entitles aliens to due process of law in deportation proceedings.'"

Choeum v. INS, 129 F.3d 29, 38 (1st Cir. 1997) (quoting Reno v.

Flores, 507 U.S. 292, 306 (1993)). As the Ninth Circuit has

stated, "[t]he liberty interests involved in removal proceedings

are of the highest order. Removal visits a great hardship on the

individual and deprives him [or her] of the right to stay and live

and work in this land of freedom." Lanza v. Ashcroft, 389 F.3d

917, 927 (9th Cir. 2004) (citation and internal quotation marks

omitted). These concerns are amplified in a case such as

Kaweesa's, where an alien is seeking asylum or protection under the

Convention Against Torture. Kaweesa has alleged that in her home

country she was raped; her husband, parents, and brother were

-15-
killed; and her son was beaten. She clearly has a weighty interest

in avoiding deportation.11

"At the core of these due process rights is the right to

notice of the nature of the charges and a meaningful opportunity to

be heard." Choeum, 129 F.3d at 38. These core concerns animate

the provisions in 8 U.S.C. § 1229a that govern motions to reopen in

absentia removal orders.12 Where an alien misses a hearing due to

lack of notice or exceptional circumstances, due process concerns,

i.e., the right to notice and a meaningful opportunity to be heard,

are implicated.13 In our view, one reason the Immigration Judge

11
Of course, on the other side of the scale is the countervailing
government interest in the efficient processing of deportation
proceedings, which, as we noted above, was a motivating concern in
allowing in absentia deportations in the first place. However, as
we discuss below, that concern is low in the instant case since
there is no indication that Kaweesa missed her hearing in order to
delay proceedings.
12
These concerns have led to decisions requiring the BIA to reopen
proceedings in a number of different factual scenarios. See, e.g.,
Lo v. Ashcroft, 341 F.3d 934, 939 (9th Cir. 2003) (requiring the
BIA to open proceedings because of counsel's ineffective
assistance); Barseghian, 14 Fed. Appx. at 807-08 (9th Cir. 2001)
(requiring the BIA to reopen proceedings where the petitioner
innocently mistook the date of his hearing); Nazarova v. INS, 171
F.3d 478, 485 (7th Cir. 1999) (requiring the BIA to reopen
proceedings where the petitioner's late arrival was caused by her
translator); Romero-Morales v. INS, 25 F.3d at 131 (vacating the
denial of the motion to reopen because of the IJ's failure to
examine the particulars of the case).
13
We wish to be clear that we are not saying that due process
concerns dictate than an alien who demonstrates exceptional
circumstances must have his or her motion to reopen granted. This
is essentially the argument we discussed above and declined to
reach, see supra note 11. All we are saying is that due process
considerations are at work in the background of the provisions in

-16-
must consider the totality of the circumstances in deciding the

validity of a claim of exceptional circumstances is to ensure that

an alien is not deprived of a meaningful opportunity to be heard.

With these background principles in mind, we turn to

Kaweesa's case. Kaweesa has conceded throughout the proceedings

that she is removable and that she failed to attend her initial

hearing on May 13, 1999. Her multiple affidavits -- but more

importantly, her actions -- demonstrate that she inadvertently

mistook the May 13 hearing date for May 17. The IJ concluded that

this "not incomprehensible" error did not amount to exceptional

circumstances as defined in 8 U.S.C. § 1229a(e)(1) because Kaweesa

"could have easily contacted the Court to verify her hearing date

to avoid her dilemma." However, Kaweesa had no reason to verify

her hearing date since she thought it was May 17.14

In short, it does not appear as if the IJ considered any

of the factors we mentioned above,15 nor does it appear that

Kaweesa's failure to appear was deliberate or due to a desire to

8 U.S.C. § 1229a.
14
This is not to say that whether an alien has attempted to
confirm the hearing date is immaterial, even in this case, but,
standing alone the failure to undertake such an effort cannot be
sufficient to deny relief, else there would be no need to consider
other factors identified by the courts and the BIA.
15
Where the BIA summarily affirms the IJ's determination under its
streamlined procedures, we treat the findings and conclusion of the
IJ as the BIA's own opinion. Albathani v. INS, 318 F.3d 365, 373
(1st Cir. 2003).

-17-
delay proceedings. For example, Kaweesa's promptness in personally

going to the court after receiving her in absentia removal notice,

her diligence in filing a pro se letter on May 19, and evidence

that she had asked her employer for a day off on May 17 all show

that her error was not due to a desire to avoid her hearing or

delay the proceedings. See Herbert, 325 F.3d at 71. The IJ did

not consider any of these factors. Further, Kaweesa's claims of

rape and the fate of her husband, parents, and brother, if true,

could very well have been sufficient for a grant of asylum.

Consequently, the harm of returning Kaweesa to Uganda without a

hearing could have potentially been great. On the other hand,

since the hearing was only Kaweesa's first scheduled appearance

before the IJ, it does not appear as if there would have been great

prejudice or inconvenience to the government or the immigration

court in granting the motion to reopen.

We have considered similar issues in two prior cases. In

Thomas, over the dissent of then-Judge Breyer, we upheld the BIA's

affirmance of an in absentia removal order entered when the

petitioner showed up late to a hearing due to an alleged

miscommunication with counsel. 976 F.2d at 788. In that case, the

petitioner entered removal proceedings following a conviction for

assault and battery. Id. at 787. A total of five hearings were

held between April and December 1987. Id. The petitioner had been

granted continuances on three occasions due to the absence of

-18-
counsel, including one where counsel failed to provide any

explanation for the absence. Id. After granting the third

continuance, the IJ told the petitioner that he had "one more

chance." Id. at 787-88. After a fourth hearing attended by both

the petitioner and counsel, a fifth hearing was scheduled, and both

petitioner and counsel were late due to the alleged

miscommunication. The IJ entered an in absentia removal order. On

appeal, we upheld the BIA's affirmance. In a dissent, then-Judge

Breyer stated that he would remand the case "[g]iven the

consequence [to the alien], the minimal procedural interference,

and the serious claim for relief from deportation . . . ." Id. at

791 (Breyer, C.J., dissenting).

In Herbert, we found that the IJ abused his discretion in

denying a motion to reopen based on exceptional circumstances where

petitioner's counsel notified the court two hours in advance that

he had a scheduling conflict and petitioner showed up 30 minutes

late due to traffic. 325 F.3d at 70. We relied on counsel's

excusable absence as the most important factor, reasoning that the

IJ should have granted a continuance to protect the petitioner's

right to be represented by his counsel and that failure to do so

simply because the petitioner was held up in traffic was an abuse

of discretion, even if being held up in traffic alone did not

qualify as exceptional circumstances. Id. at 72.

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 However, what truly distinguished Herbert's case from

Thomas's is that there was "nothing in the record to suggest" that

Herbert's own tardiness and his counsel's failure to appear were "a

ploy to avoid the deportation hearing." Id. at 72 n.1. We believe

the same can be said for Kaweesa, especially considering her

conduct following her receipt of the removal order. We also note

that the hearing was Kaweesa's first scheduled appearance before

the IJ, and she was appearing without counsel. She likely would

have been entitled to a continuance often granted to petitioners

who come to their first hearing unrepresented by counsel, and there

is no reason to think that she skipped her hearing simply to cause

delay. See Thomas, 976 F.2d at 787 (the IJ first continued

petitioner's case to give him time to secure counsel). Moreover,

in both Thomas and Herbert, the petitioners were not seeking asylum

or relief under the Convention Against Torture. The potential

consequences to Kaweesa, rape and torture, are much greater than

mere deportation. In sum, because the IJ must consider the

totality of the circumstances, and because it is plain that the IJ

looked no further than the fact that Kaweesa mixed up the dates,

the IJ committed an error of law. Given our review of the record,

we believe that Kaweesa has demonstrated exceptional circumstances

and that her motion to reopen should have been granted.

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 III.

For the foregoing reasons, we reverse the BIA's denial of

Kaweesa's First Motion to Reopen and remand this case with

instructions to order a new hearing before the IJ to determine the

merits of her requests for relief from deportation.

Reversed and Remanded.

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