United States Court of Appeals
For the First Circuit
No. 02-1950
DILAND DEXTER HERBERT,
Petitioner,
v.
JOHN D. ASHCROFT, Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge, and
Cyr and Stahl, Senior Circuit Judges.
Derege B. Demissie with whom Doherty & Demissie was on
brief for petitioner.
Janice K. Redfern, Attorney, Office of Immigration
Litigation, with whom Robert D. McCallum, Jr., Assistant Attorney
General, and Christopher C. Fuller, Senior Litigation Counsel, were
on brief for respondent.
April 8, 2003
LYNCH, Circuit Judge. Diland Herbert is a native and
citizen of Trinidad and Tobago, a lawful permanent resident of the
United States for almost twenty-five years, and the father of a
ten-year-old American citizen. He petitions for review of the
denial of his motion to reopen a decision in absentia to deport
him. The motion was denied because he was approximately thirty
minutes late for his hearing on January 11, 2002. 8 U.S.C. §
1229a(b)(5)(A) (2000). This is, however, not a tardiness case
alone; there are other unusual circumstances. In light of these
unusual circumstances, we grant the petition for review, reverse
the denial of the motion to review, and remand to the agency for
proceedings consistent with this opinion.
I.
Herbert's problems started with a criminal conviction in
1999 for domestic abuse of a woman who is now his fiancee and the
mother of his child. Herbert pled guilty in Massachusetts state
court to family abuse/assault and battery, assault and battery on
a police officer, and resisting arrest. Herbert was originally
sentenced to two years in prison; the court, however, granted his
motion to reduce the sentence to a 364-day suspended sentence. The
INS charged Herbert with being subject to removal from the United
States under 8 U.S.C. § 1227(a)(2)(A)(iii) on the grounds that he
had been convicted of an aggravated felony and sentenced to at
least a year in prison.
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The INS action led to a series of hearings beginning in
September 2000 before immigration judges in Louisiana and
Massachusetts. Herbert appeared at all but one of these hearings;
at the Louisiana hearing where Herbert did not appear, Herbert's
counsel informed the court that Herbert had moved to Massachusetts
and requested, and obtained, a change of venue to the Boston
Immigration Court. Counsel retained by Herbert appeared at several
hearings and may have participated in all of them. At a hearing in
Boston on January 10, 2001, Herbert admitted the charge of
removability but requested an opportunity to apply for cancellation
of removal under 8 U.S.C. § 1229b(b). Herbert submitted evidence
showing that his sentence had been reduced to less than a year,
which rendered him eligible for cancellation. The next day, the
INS responded by filing an amended notice to appear that charged
Herbert with removability under 8 U.S.C. § 1227(a)(2)(E)(i), based
on his conviction for a crime of domestic violence. In response,
Herbert again admitted the charge of removability, but applied for
cancellation of removal. Herbert's amended application was
admitted at a hearing on June 12, 2001. At the June 12 hearing,
the IJ continued the case until January 11, 2002 and personally
served Herbert and his counsel with notice of the next hearing.
The hearing on January 11, 2002 was scheduled for 1 p.m.
At approximately 10:50 a.m. that day, Herbert's attorney, Stephen
Lagana, filed an emergency motion for continuance with the IJ. The
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motion explained that Attorney Lagana had been ordered to appear
before a magistrate judge in federal district court for a hearing
in another matter, continued from the preceding day. Lagana, who
had told Herbert in a phone conversation on January 8, 2002 that he
would be at Herbert's hearing, never communicated to Herbert or
Herbert's family that he would be unable to participate. Later
that day, Herbert told the IJ's clerk that he had expected Lagana
to be there at the hearing to represent him.
Though Herbert himself arrived late, Herbert's mother,
Angela Herbert-Thomas, and grandmother, Elty S. Herbert, arrived at
the courthouse at 12:00 p.m. When Herbert did not arrive promptly,
Herbert-Thomas informed the court personnel that she had spoken
with Herbert that morning and that he would be arriving shortly.
Despite Herbert-Thomas's statement and Lagana's motion, the IJ
nevertheless proceeded in absentia and ordered Herbert deported to
Trinidad and Tobago. The motion for a continuance was still
pending when the IJ ordered Herbert deported.
Herbert himself arrived about thirty minutes late for the
hearing. Herbert and his fiancee, Alisya Dancy, had planned to
take public transportation to the hearing together with their
child, but they elected to call a cab instead since it was raining
and their child was recovering from a throat infection. Herbert
and Dancy called the cab slightly after 12:00 p.m. and it arrived
at 12:30 p.m. The cab was delayed by heavy traffic along
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Massachusetts Avenue and I-93 North and arrived at the courthouse
at 1:20 p.m. Herbert and Dancy were further delayed by a line at
the courthouse entrance and did not actually arrive at the
courtroom until around 1:30 p.m. After he arrived, Herbert spoke
to the IJ's clerk, who advised him that he had 180 days to file a
motion to reopen.
Herbert, who retained different counsel at Lagana's
suggestion, filed a motion to reopen his removal proceedings on
April 11, 2002 and an amended motion to reopen on April 16, 2002.
In the motion, Herbert argued that his attorney's unexpected
failure to appear, the heavy rainfall and traffic congestion, and
his family's presence and communication with court personnel
together constituted extraordinary circumstances within the meaning
of 8 C.F.R. § 3.23(b)(4)(iii) (2002). In support of his motion,
Herbert submitted affidavits from himself, Dancy, Herbert-Thomas,
Elty, and his new attorney, and a copy of Lagana's emergency motion
for continuance.
The IJ denied Herbert's motion in a written decision on
April 26, 2002. The IJ held, "Pendency of a motion for continuance
will not excuse appearance of the respondent at any scheduled
hearing addressed in the motion." Because the court had not yet
granted the continuance, the IJ concluded, the mere filing of the
motion did not excuse Herbert's absence. The IJ also ruled that
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unexpected traffic and heavy rainfall do not amount to exceptional
circumstances. 8 U.S.C. § 1229a(e)(1).
Herbert appealed to the Board of Immigration Appeals. On
July 24, 2002, the BIA affirmed, without opinion, the decision of
the IJ. This appeal follows.
II.
Our review of the BIA's denial of the motion to reopen is
for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323-24
(1992); Thomas v. INS, 976 F.2d 786, 789 (1st Cir. 1992) (per
curiam).
Where the BIA has summarily affirmed the IJ's
determination under its streamlined procedures, we treat the
findings and conclusion of the IJ as the Board's own opinion.
Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003); Chen v. INS,
87 F.3d 5, 8 n.3 (1st Cir. 1996). The IJ's decision thus stands as
the final agency decision. See Albathani, 318 F.3d at 373; 8
C.F.R. § 3.1(a)(7)(iii).
Several statutory provisions are pertinent to the
analysis. The first, 8 U.S.C. § 1229a(b)(5)(A), concerns in
absentia hearings and provides:
Any alien who, after written notice . . . has been
provided to the alien or the alien's counsel of record,
does not attend a proceeding under this section, shall be
ordered removed in absentia if the [INS] establishes by
clear, unequivocal, and convincing evidence that the
written notice was so provided and that the alien is
removable . . . .
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A petition for review challenging an order entered in
absentia is, by statute, "confined to (i) the validity of the
notice provided to the alien, (ii) the reasons for the alien's not
attending the proceeding, and (iii) whether or not the alien is
removable." 8 U.S.C. § 1229a(b)(5)(D). The first and third
clauses are not at issue. The adequacy of the agency's reasoning
under the second clause is reviewed, as stated, for abuse of
discretion.
Congress also gave guidance as to when a timely motion to
reopen should be allowed:
Such an 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)[.]
8 U.S.C. § 1229a(b)(5)(C). Subsection (e)(1) provides:
The term "exceptional circumstances" refers to
exceptional circumstances (such as serious illness of the
alien or serious illness or death of the spouse, child,
or parent of the alien, but not including less compelling
circumstances) beyond the control of the alien.
8 U.S.C. § 1229a(e)(1). We focus here on the requirement of
"exceptional circumstances . . . beyond the control of the alien."
These restrictions were adopted in response to a serious
problem: some aliens deliberately did not appear for hearings and
thus effectively extended their stay in this country. This tactic
imposed considerable costs on the INS and disrupted its efforts to
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promptly schedule and hear requests for discretionary relief from
removal. This court has taken the restrictions seriously.
In Thomas, this court held, over the dissent of then-
Judge Breyer, that where the petitioner and his attorney appeared
approximately thirty minutes late, counsel had made no effort to
contact the judge and inform him they would be delayed, and
previous absences by the attorney (including one without
explanation) had necessitated continuances, there was no abuse of
discretion in denying a motion to reopen. See 976 F.2d at 788,
790. Thomas was the last and apparently only occasion on which
this court addressed a similar issue.
Other circuits have sometimes found error in denial of
motions to reopen when the petitioner was tardy. See, e.g.,
Nazarova v. INS, 171 F.3d 478, 484 (7th Cir. 1999) (holding that
BIA abused its discretion by upholding IJ's denial of motion to
reopen where alien was two hours late because she was waiting for
her interpreter); Jerezano v. INS, 169 F.3d 613, 615 (9th Cir.
1999) (reversing denial of alien's motion to reopen where alien
"was 15 to 20 minutes late, but arrived while the IJ was still on
the bench").
We think this is one of those rare cases in which
exceptional circumstances exist. The totality of the circumstances
must be considered. The most important factor to us is that
Herbert's counsel timely notified the IJ that he had been required
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to appear that day in U.S. District Court and therefore requested
a continuance of the immigration hearing. The IJ did not act on
that motion, but rather conducted an in absentia hearing. We would
think that ordinarily a requirement by a federal judge that counsel
appear in federal court would be given precedence. The IJ, in
denying the motion to reopen, rejected this circumstance with the
comment that until he granted the continuance "all parties must
attend the hearing and be prepared to go forward." It appears it
was not possible for Herbert's counsel to attend separate,
contemporaneous hearings before the federal magistrate judge and
the IJ -- that is why the continuance was requested.1 In that
sense, the IJ's rejection of the motion for continuance as a reason
to reopen was arbitrary and it was capricious.
As for the stated need of the parties to be present while
the IJ decided the motion for continuance, there are two responses.
First, under the regulations, Herbert was entitled to have counsel
present. See Saakian v. INS, 252 F.3d 21, 24 (1st Cir. 2001)
("Aliens have a statutory right to be represented by counsel, at
their own expense, in deportation proceedings. That right is an
integral part of the procedural due process to which the alien is
entitled.") (citation and internal quotation omitted); see also
1
The record shows that counsel had appeared with Herbert at
prior hearings. There is nothing in the record to suggest the
motion for a continuance was a ploy to avoid the deportation
hearing. Indeed, Herbert's relatives and witnesses were apparently
already on their way to the hearing when the motion was filed.
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Romero-Morales v. INS, 25 F.3d 125, 130-31 (2d Cir. 1994) ("As the
Supreme Court has noted, 'a myopic insistence upon expeditiousness
in the face of a justifiable request for delay can render the right
to defend with counsel an empty formality.'") (quoting Ungar v.
Sarafite, 376 U.S. 575, 589 (1964)). It is highly improbable, to
say the least, that Herbert would have chosen to go forward without
his counsel on a matter of such importance to him. Second, Herbert
believed his counsel would be there for the hearing -- he did not
know of the motion for continuance. Had his counsel been there at
1 p.m., counsel would have explained, as Herbert's relatives did,
that Herbert was on his way. Since the relatives were witnesses,
their testimony could have been taken first, and there would have
been no delay. Cf. Jerezano, 169 F.3d at 615 ("It is accepted
practice for courts to give tardy litigants a second chance by
putting them at the end of the calendar, and it seems both harsh
and unrealistic to treat as a nonappearance a litigant's failure to
be in the courtroom at the precise moment his case is called.").
We question whether, on these unique facts, there was even a true
"failure to appear." See id.
We would agree with the INS that if there were meaningful
delay and if this were a simple situation of Herbert miscalculating
how long it would take him to get to the hearing room on a winter's
day in Boston, this rationale would not suffice to overturn a
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denial of a motion to reopen.2 See, e.g., Sharma v. INS, 89 F.3d
545, 547-48 (9th Cir. 1996). But that situation is not this case,
and here the agency acted arbitrarily and capriciously in denying
the motion to reopen. The circumstances in this case were in fact
exceptional. See Nazarova, 171 F.3d at 484 ("We . . . agree with
the Second Circuit that, when an IJ's decision to enter an in
absentia deportation order and her subsequent refusal to reopen the
order threaten the alien's constitutional or statutory rights,
circumstances may exist that are sufficiently exceptional to excuse
nonappearance and warrant remand."); Romero-Morales, 25 F.3d at 129
(identifying the alien's good faith reliance on counsel and the
availability of relatives to testify on his behalf as factors that
could contribute to a finding that extraordinary circumstances
exist).
Accordingly, we grant the petition, vacate the denial of
the motion to reopen, and remand to the agency with directions that
Herbert be permitted to present his claims for cancellation of
removal. So ordered.
*Dissent follows*
2
We do not reach the claim of denial of due process or the
question of what role the child's illness should play in the
analysis.
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CYR, Senior Circuit Judge, dissenting. I would remand
this case for further proceedings due to the fact that the record
on appeal is insufficiently developed to enable a reliable
appellate determination as to whether the denial of the motion to
reopen constitutes an abuse of discretion, let alone an arbitrary
and capricious agency action.
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