United States Court of Appeals,
Fifth Circuit.
No. 96-60263.
Leticia Magdaleno de MORALES; Eunice Nefta Morales-Magdaleno;
Monic Morales-Magdaleno, Petitioners,
v.
IMMIGRATION and NATURALIZATION SERVICE, Respondent.
June 26, 1997.
Petition for Review of an Order of the Board of Immigration
Appeals.
Before DUHÉ, BENAVIDES and STEWART, Circuit Judges.
BENAVIDES, Circuit Judge:
This appeal requires us to determine whether the Board of
Immigration Appeals ("BIA") abused its discretion by denying the
petitioners' motion to reopen deportation proceedings after an
Immigration Judge ("IJ") entered an in absentia order of
deportation. We hold that the BIA correctly concluded that the
petitioners' failure to appear at their deportation hearing was not
the result of exceptional circumstances. Therefore, the BIA's
denial of the petitioners' motion to reopen is AFFIRMED and the
subject petition for review is DENIED.
I.
On June 23, 1993, the Immigration and Naturalization Service
("INS") instituted deportation proceedings against the petitioners
by issuing an order to show cause.1 A deportation hearing before
1
The petitioners include Leticia Magdaleno de Morales and her
two daughters, Eunice Nefta and Monica, who were ages seven and
nineteen respectively at the time the IJ entered the in absentia
1
an IJ was scheduled for January 11, 1994. It is undisputed that
the petitioners were notified of the hearing and informed that
failure to appear could result in the entry of an in absentia order
of deportation.
Nonetheless, when the immigration court convened on January
11, 1994, the petitioners were not present. Accordingly, the IJ
proceeded in absentia and found that the charge of deportability
had been proven by clear, unequivocal, and convincing evidence.2
Therefore, the IJ ordered the petitioners deported to Mexico.
On January 27, 1994, the petitioners filed a motion with the
IJ seeking to rescind the in absentia order of deportation and
reopen the proceedings. The petitioners argued that this relief
was warranted because their failure to appear at the January 11
hearing was the result of exceptional circumstances. Specifically,
the petitioners contended that the mechanical failure of their car
on the way to the hearing constituted an exceptional circumstance
beyond their control.
On January 11, the petitioners left their home in Boerne,
Texas at approximately 7:00 a.m. to travel sixty miles to their
8:30 a.m. deportation hearing in San Antonio. The engine of the
order of deportation. The petitioners are natives of and citizens
of Mexico.
2
Uncontradicted evidence in the record indicated that the
petitioners last entered the United States in December 1989 as
nonimmigrant visitors who were authorized to remain in the country
until January 8, 1990. The petitioners have remained in the United
States illegally beyond this period. Thus, the IJ found that the
petitioners were deportable under section 241(a)(1)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(B), because
they remained in the country longer than their visas permitted.
2
petitioners' car died on the way to the hearing. Because the
petitioners were unable to repair the car themselves or pay to have
it towed to San Antonio and fixed there, they decided to try to get
a ride home so that a relative could repair the car.
At approximately 8:00 a.m., the petitioners obtained a ride
from a passing driver who took them to a grocery store in Boerne.
From there, the petitioners called a relative who picked them up
and drove them home. The petitioners arrived home at approximately
8:50 a.m.
The petitioners attempted to call the immigration court in San
Antonio when they arrived home but were unable to locate the phone
number in the San Antonio phone book or in their notice of hearing.
The petitioners did not attempt any further correspondence with the
immigration court until they received notice of the order of
deportation entered against them. At that time, the petitioners
contacted an attorney who filed the subject motion to reopen the
proceedings on their behalf.
The petitioners' motion to reopen was denied by the IJ, whose
decision was subsequently affirmed by the BIA. The BIA found that
the petitioners did not establish that exceptional circumstances
prevented them from attending the hearing. In reaching this
conclusion, the BIA explained that it was "not satisfied that the
[petitioners] did everything possible to attend the hearing."
Moreover, the BIA found it significant that the petitioners made
little effort to contact the court to explain their inability to
appear. Finally, the BIA noted that other than an affidavit
3
submitted by the petitioners, there was "no independent
confirmation that there was a mechanical breakdown on the day of
the hearing."
The petitioners timely filed a petition for review of the
BIA's decision with this court and this appeal followed.
II.
This court generally reviews only the decision of the BIA in
immigration cases because the BIA conducts a de novo review of the
administrative record. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197
(5th Cir.1996). The BIA's denial of a motion to reopen is reviewed
for an abuse of discretion. See Ogbemudia v. INS, 988 F.2d 595,
600 (5th Cir.1993); INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct.
719, 724-25, 116 L.Ed.2d 823 (1992); Sharma v. INS, 89 F.3d 545,
547 (9th Cir.1996). In conducting our inquiry, we review the
factual findings of the BIA for substantial evidence. Carbajal-
Gonzalez, 78 F.3d at 197. Although we review de novo the BIA's
determination of purely legal questions, we will respect the
interpretation given to an ambiguous statutory provision by the
agency to which Congress has delegated responsibility for
administering the Act. Id.; see also INS v. Cardoza-Fonseca, 480
U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987);
Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S.
837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). The
government concedes that to the extent that this case involves a
legal interpretation of the meaning of the statutory term
"exceptional circumstances," this court's review is de novo.
4
III.
Section 1252(b) of the Immigration and Nationality Act, as
codified, provides that a deportation hearing may be held in
absentia if the alien "has been given a reasonable opportunity to
be present" and "without reasonable cause fails or refuses to
attend" the proceedings. 8 U.S.C. § 1252(b). When Congress passed
the Immigration Act of 1990,3 it significantly amended the
Immigration and Nationality Act. Although Congress left § 1252(b)
unchanged, it added § 1252b(c), which provides that "[a]ny alien
who ... does not attend a proceeding under ... this title, shall be
ordered deported under section 1252(b)(1) of this title in
absentia." Id. § 1252b(c)(1). The amended Act also provides that
an alien who files a motion to reopen may have an in absentia order
rescinded "if the alien demonstrates that the failure to appear was
because of exceptional circumstances." Id. § 1252b(c)(3)(A).4
Both courts and commentators have recognized some tension
between sections 1252(b) and 1252b(c)(3) of the Act as amended.5
3
Pub.L. No. 101-649, 104 Stat. 4978 (1990).
4
The amended statute applies if notice of the hearing was
provided after June 13, 1992. Sharma, 89 F.3d at 547 n. 2 (citing
57 Fed.Reg. 5180 (February 12, 1992)). It is undisputed that the
petitioners received notice of their hearing on October 12, 1993.
5
See Sharma, 89 F.3d at 548 ("It is unclear why Congress left
the "reasonable cause' language in § 1252 intact"); Romero-Morales
v. INS, 25 F.3d 125, 128 (2d Cir.1994) ("It is unclear what
Congress intended by adding the mandatory language combined with
the "exceptional circumstances' standard for reopening under [the
amended statute], while leaving intact the permissive language and
less stringent "reasonable cause' standard for avoiding in absentia
deportation under § 1252(b)"); Iris Gomez, The Consequences of
Nonappearance: Interpreting New Section 242B of the Immigration
5
This tension is reflected in the petitioners' brief, which utilizes
the "reasonable cause" and "exceptional circumstances" standards
interchangeably. We believe, however, that some of the confusion
the amended statute has engendered is unwarranted.
Section 1252(b) by its terms defines an IJ's authority to
enter an in absentia order in the first instance. Section
1252b(c)(3), on the other hand, addresses the requisite burden on
an alien seeking to rescind an in absentia order that has already
been entered. Accordingly, a motion to reopen deportation
proceedings on the basis that the IJ improperly entered an order of
deportation in absentia must be supported by evidence that the
alien had reasonable cause for her failure to appear.6 Conversely,
a motion to reopen deportation proceedings to rescind a properly
entered in absentia order of deportation must satisfy the
exceptional circumstances standard.
and Nationality Act, 30 SAN DIEGO L. REV. 75, 150 (1993) ("In the
context of a deportation hearing under [the Act], both "reasonable
cause' and "exceptional circumstances' excuse nonappearance at a
hearing").
6
Such evidence should be presented to the IJ prior to the
entrance of the order so that the IJ is given the opportunity to
refrain from proceeding in absentia. Typically evidence of this
nature would be presented in a formal motion for a continuance or
a change of venue. Cf. Maldonado-Perez v. INS, 865 F.2d 328, 335-
37 (D.C.Cir.1989) ("Petitioner's argument for his absence is
intertwined with his argument for a change of venue"); Patel v.
INS, 803 F.2d 804, 806 (5th Cir.1986) (concluding that the
petitioner did not establish reasonable cause for his absence and
that the denial of his motion for a continuance was not an abuse of
discretion). In an emergency situation such as existed here,
however, at least a phone call explaining the circumstances was
required to preserve a potential challenge to the IJ's authority to
enter an in absentia order. We express no view regarding the
existence vel non of reasonable cause under the facts of this case.
6
In addition to comporting with common sense and the plain
meaning of the statute, this reconciliation of sections 1252(b) and
1252b(c)(3) of the Act has recently been adopted in rules and
regulations promulgated by the Executive Office of Immigration
Review. See Motions and Appeals in Immigration Proceedings, 61
Fed.Reg. 18,900, 18,908 (1996) (to be codified at 8 C.F.R. pt.
246). Because the petitioners cannot and do not challenge the
authority of the IJ to enter the in absentia order of deportation
in the first instance, they must satisfy the exceptional
circumstances standard to establish that the BIA abused its
discretion by denying their motion to rescind the order and reopen
the proceedings.
IV.
The amended Act expressly defines the term "exceptional
circumstances" to mean "exceptional 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). The plain language
of the statute indicates that this is a difficult burden to meet.
Moreover, the statutory scheme as a whole contemplates that aliens
subject to deportation proceedings will make reasonable efforts to
attempt to avoid the entrance of in absentia orders, and awards
them for doing so by subjecting them to a less onerous standard.
Under the circumstances of this case, the BIA correctly concluded
that the mechanical failure of the petitioners' car on the way to
the hearing did not constitute exceptional circumstances within the
7
meaning of the Act.7
First, we are not convinced that the circumstances were
sufficient to excuse the petitioners' attendance at the hearing.
In this regard, we are puzzled by the petitioners' decision to
"backtrack home" rather than proceed to San Antonio after their car
broke down. Similarly, the record does not explain why the
relative who picked the petitioners up from the grocery store could
not have driven them to San Antonio or lent them a car.
Even assuming that the petitioners justified their failure to
appear at the hearing, however, they did not make adequate efforts
to avoid entrance of the in absentia order. First, although the
petitioners car broke down approximately one hour before the
hearing, they did not call the IJ to explain their predicament.
Second, although the petitioners arrived home only twenty minutes
after the hearing was scheduled to have begun—when they presumably
still had time to explain their situation before being ordered
deported—they made no effort to contact the court beyond a cursory
search for the phone number. Finally, we find it significant that
the petitioners did not attempt any further correspondence with the
immigration court until over two weeks after their scheduled
hearing, when they received notice of the in absentia order of
deportation. In a matter of such overriding importance in an
7
Cf. Sharma, 89 F.3d at 547 (holding that the petitioners'
"traffic difficulties" did not constitute exceptional
circumstances); Thomas v. INS, 976 F.2d 786, 790 (1st Cir.1992)
(holding that "reasonable cause" did not justify reopening
deportation proceedings when the alien appeared thirty minutes late
for the hearing because the alien and his attorney "crossed
signals" about where to meet).
8
individual's life, we would expect such efforts to be made.
V.
In sum, we conclude that the petitioners did not establish
that their failure to appear at the deportation hearing was the
result of exceptional circumstances. Thus, the BIA did not abuse
its discretion by denying the petitioners' motion to reopen their
deportation proceedings. Accordingly, the BIA's denial of the
petitioners' motion to reopen is AFFIRMED and the petition for
review is DENIED.
9