Interim Decision #3288
Interim Decision #3288
In re W-F-, Respondent
Decided June 18, 1996
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The provisions of section 242B of the Immigration and Nationality Act, 8 U.S.C. § 1252b
(1994), apply any time an alien, whose presence has not been excused by the Immigration
Judge, fails to appear for a deportation hearing after proper notice has been issued pursuant
to section 242B, regardless of whether the issue of deportability has already been addressed
or resolved and regardless of whether the alien has someone else appear on his behalf.
(2) An Immigration Judge retains the authority to properly excuse an alien’s presence at a
hearing, to grant a continuance, or to change venue for good cause shown by the alien or the
Immigration and Naturalization Service either prior to or at the time of the deportation
hearing.
(3) If an alien’s presence at a deportation hearing has not been excused, and any request for a
rescheduling of the hearing has not been granted, the provisions of section 242B apply and a
challenge to the entry of an in absentia deportation order based on the alien’s failure to
appear is governed by the “rescission” provisions of section 242B(c)(3) of the Act.
FOR RESPONDENT: Grosvenor Anschel, Esquire, Bellevue, Washington
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,
HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, and
GUENDELSBERGER, Board Members. Concurring and Dissenting Opinion: ROSENBERG,
Board Member.
HOLMES, Board Member:
In a decision dated November 24, 1995, an Immigration Judge denied the
respondent’s motion to reopen his deportation proceedings based on a finding that the respondent had failed to show “exceptional circumstances” for
his failure to appear at a deportation hearing held on September 23, 1994. See
section 242B(c)(3) of the Immigration and Nationality Act, 8 U.S.C.
§ 1252b(c)(3) (1994). On November 28, 1995, the Immigration Judge certified his decision to this Board for review pursuant to regulations at 8 C.F.R.
§§ 3.1(c), 242.8 (1995).1 The decision of the Immigration Judge is affirmed
1 We note that on or about December 7, 1995, the parties were advised by the Immigration
Court that they could submit additional briefs to the Board. None have been submitted,
although on February 13, 1996, the Board did grant the respondent a temporary stay of
deportation pending review of the decision of the Immigration Judge.
503
Interim Decision #3288
insofar as it denied the respondent’s motion to reopen the deportation
proceedings.
I. BACKGROUND
The respondent is a 32-year-old native and citizen of Poland. On October
24, 1993, the Immigration and Naturalization Service issued an Order to
Show Cause and Notice of Hearing (Form I-221) which charged him
with deportability under section 241(a)(1)(B) of the Act, 8 U.S.C.
§ 1251(a)(1)(B)(Supp. V 1993). The Service alleged that the respondent
entered the United States without inspection on or about March 2, 1991. On
March 21, 1994, the Immigration Court issued notice that the respondent
should appear for a hearing on June 23, 1994.
The respondent was absent on June 23, 1994, but an attorney appeared on
his behalf. Counsel acknowledged proper service of the Order to Show
Cause, conceded deportability on the respondent’s behalf, and indicated the
respondent’s desire to have an application for relief from deportation considered. Counsel explained that the respondent was at sea working on a fishing
vessel and requested a continuance of the hearing. The Immigration Judge
continued the proceedings until September 23, 1994. Both written and oral
notices were provided for the hearing date and the Immigration Judge
expressly warned counsel that further continuances would not be granted on
the basis of the respondent’s employment.
The respondent failed to appear for the deportation hearing on September
23, 1994. Once again, his counsel was present. Counsel did not contest the
adequacy of the notice of hearing. While no request for a continuance had
been filed before the hearing date, he requested a further continuance of the
proceedings because the respondent was still working. He provided a letter
from the respondent’s employer stating that it was “impossible” to get the
respondent to disembark “at this time.” The letter was dated September 22,
1994.
The Immigration Judge ultimately denied the request for a continuance.
His denial was based on a consideration of the reasons for the request, on its
timing, and on his previous admonitions. The Immigration Judge concluded
the proceedings by entering an “Order Based on Abandonment.” He found
that the deportation charge had been adequately established, and that the
respondent had abandoned any potential applications for relief due to his failure to appear. However, he did grant the respondent the privilege of voluntary departure under section 244(e) of the Act,
8 U.S.C. § 1254(e) (1994). He
notified the respondent that any appeal would be due by October 3, 1994.
The respondent subsequently filed a timely Notice of Appeal (Form
EOIR-26) before the Board. He argued that his request for a continuance
should have been granted, and that it was reasonable considering the nature
of his employment.
504
Interim Decision #3288
In a decision dated October 23, 1995, we found that we lacked jurisdiction
over the appeal in view of the provisions of section 242B of the Act. We
noted that section 242B(c)(3) of the Act provides that an order issued after a
hearing held in absentia under section 242B can only be rescinded upon the
filing of a motion to reopen with the Immigration Judge. See Matter of Gonzalez-Lopez, 20 I&N Dec. 644 (BIA 1993). Because the respondent had been
instructed to file an appeal and because, inter alia, of the 180-day filing
requirement of section 242B(c)(3)(A), we construed the appeal as a motion to
reopen and returned it to the Immigration Judge for adjudication.
II. THE IMMIGRATION JUDGE’S DECISION AND
CERTIFICATION
On November 24, 1995, the Immigration Judge issued his decision. He
initially questioned the Board’s decision to remand the case under section
242B of the Act as opposed to conducting a review on direct appeal. However, upon employing section 242B of the Act, the Immigration Judge concluded that the respondent’s economic pursuits did not constitute the
“exceptional circumstances” which would be necessary to excuse his failure
to appear. See sections 242B(c)(3)(A), (f)(2) of the Act. In the alternative, the
Immigration Judge found that the respondent did not present “good cause”
for a continuance, and that his failure to appear constituted an abandonment
of his application for relief from deportation.
On November 28, 1995, the Immigration Judge certified his decision to
this Board. In his decision, the Immigration Judge raised the issue of whether
section 242B of the Act should be applied to the respondent’s case, where
deportability had been resolved, the alien failed to appear for a subsequent
hearing scheduled to consider applications for relief, but counsel had been
present to request a continuance. The Immigration Judge in particular noted
three reasons, further discussed below, weighing in favor of treating such
cases as being outside the scope of section 242B of the Act. He indicated his
view that Immigration Judges had reached different conclusions regarding
the issues presented in this case and that the Board’s guidance on this matter
would be valuable. We agree with the Immigration Judge that this is a matter
that requires clarification and uniform application.
Upon consideration, we find that the provisions of section 242B of the Act
do apply any time an alien, whose presence has not been excused by the
Immigration Judge, fails to appear for a deportation hearing after proper
notice pursuant to the requirements of sections 242B(a)(2) and (c) of the Act.
The provisions of section 242B(c) apply regardless of whether the issue of
deportability already has been addressed or resolved and regardless of
whether the alien has someone else appear on his behalf, unless the alien’s
attendance has been properly excused by the Immigration Judge.
505
Interim Decision #3288
III. SECTION 242B OF THE ACT
Section 242B of the Act was added by the Immigration Act of 1990, Pub.
L. No. 101-649, 104 Stat. 4978. See generally Matter of Gonzalez-Lopez,
supra, at 645.2 This section provides, inter alia, notice requirements for
Orders to Show Cause and hearing notices, and it addresses the consequences
of an alien’s failure to appear for a scheduled deportation hearing. See generally Matter of Grijalva,
21 I&N Dec. 27, 30-31 (BIA 1995). Section
242B(c)(1) of the Act sets forth the specific conditions under which a hearing
will be held in absentia. It states in pertinent part:
Any alien who, after written notice required under subsection (a)(2) has been provided to
the alien or the alien’s counsel of record, does not attend a proceeding under section 242,
shall be ordered deported under section 242(b)(1) in absentia if the Service establishes by
clear, unequivocal, and convincing evidence that the written notice was so provided and that
the alien is deportable. (Emphasis added.)
The issue before us is one of statutory construction. The object of statutory
construction is to determine the congressional intent with respect to the legislation enacted. If the statutory language is clear, that is the end of the inquiry,
as Immigration Judges and the Board, as well as the courts, clearly “must
give effect to the unambiguously expressed intent of Congress.” Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843
(1984). The paramount index of congressional intent is the plain meaning of
the words used in the statute as a whole. See INS v. Cardoza-Fonseca,
480
U.S. 421, 431 (1987); see also Matter of Grinberg,
20 I&N Dec. 911 (BIA
1994). And, it is assumed that the legislative purpose is expressed by the ordinary meaning of the words used. INS v. Phinpathya,
464 U.S. 183, 189
(1984). Moreover, in ascertaining the “plain meaning” of the statute, the
Board “must look to the particular statutory language at issue, as well as the
language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc.,
486 U.S. 281, 291 (1988).
Section 242B(c)(1) of the Act addresses the failure of an alien to attend
“a” properly scheduled proceeding. It draws no distinctions between hearings which are held before or after deportation charges have been addressed
or resolved. Thus, we find the plain meaning of the language of the statute
answers the principal question before us.3 Regardless of the stage of the
deportation proceedings, if the alien fails to appear at a properly scheduled
hearing and his or her attendance has not been excused by the Immigration
Judge, the provisions of section 242B(c) of the Act will apply.
2 Section 242B of the Act applies to a deportation hearing where notice of the scheduled
hearing date is issued on or after June 13, 1992. See Matter of Gonzalez-Lopez, supra.
3 This is consistent with the recognition that determinations of deportability and those
regarding relief from deportation are part of one single deportation proceeding. See Foti v. INS,
375 U.S. 217 (1963).
506
Interim Decision #3288
Moreover, we note that this conclusion is consistent with the overall statutory scheme of section 242B of the Act. For example, the notice provisions of
this section do not differentiate between hearings which address deportation
charges and those which address applications for relief from deportation. See
section 242B(a)(2) of the Act; see also section 242(b) of the Act, 8 U.S.C.
§ 1252(b) (1994); Matter of Grijalva, supra;
8 C.F.R. § 3.26 (1995); cf. section 242B(e)(4) (specifically addressing consequences of a failure to appear
for an asylum hearing after proper notice). We consider also that this reading
of the statute provides a uniform standard for review of every unauthorized
failure to appear for a properly scheduled deportation hearing before an
Immigration Judge. Indeed, it would make little sense to conclude that Congress was solely concerned with one stage in the hearing process, rather than
the entirety of the deportation proceedings before an Immigration Judge.4
We therefore hold that when a respondent fails to appear for any stage of a
deportation proceeding after receiving proper notice pursuant to the provisions of sections 242B(a) and (c) of the Act and his or her presence has not
been excused by the Immigration Judge, the provisions of section 242B of
the Act are applicable.5 Where the in absentia hearing results in an order of
deportation, an alien seeking to challenge the entry of the in absentia order of
deportation can only do so by the filing of a motion to reopen with the Immigration Judge pursuant to the provisions of section 242B(c)(3) of the Act. See
Matter of Gonzalez-Lopez, supra. The alien must then establish that “exceptional circumstances” existed for the absence, unless a notice or custody issue
was involved. See section 242B(c)(3) of the Act; see also Matter of Grijalva,
supra.
The Immigration Judge on certification expressed three principal concerns with such a conclusion. The principal issue in this case is one of statutory interpretation, and it is upon this basis that we have reached our decision.
However, the concerns reflected in the Immigration Judge’s decision certainly warrant discussion.
First, the Immigration Judge noted that the Board ordinarily does not have
the benefit of a transcript when it reviews an Immigration Judge’s decision
regarding a motion to reopen. In circumstances where a representative has
appeared on an absent alien’s behalf, the Immigration Judge concluded that a
transcript could be essential to the resolution of an appeal from the decision
regarding the motion. However, the reasons for the alien’s failure to appear
4 Congressional concern with the entirety of the deportation hearing process is reflected in
the limitations on discretionary relief for failure to appear that were also established in section
242B. See section 242B(e) of the Act.
5 Inherent in any deportation order issued under section 242B of the Act is a finding that any
applications for relief have been abandoned for failure to prosecute. We note, however, that the
provisions of section 242B of the Act do not apply where a deportation order is entered against
an alien for failure to timely file an application for relief where there is no failure to appear for a
hearing involved. See Matter of R-R-,
20 I&N Dec. 547 (BIA 1992).
507
Interim Decision #3288
are ordinarily not matters of record at the hearing, but are set forth in conjunction with the subsequent motion. Moreover, this Board has the authority to
direct that a transcript be prepared in any case in which it deems a transcript
necessary for a proper consideration of an appeal or motion.
The Immigration Judge also opined that the holding we have reached today
would interfere with the prompt conclusion of deportation proceedings. However, that should no more be the case in the factual circumstances here than
otherwise would occur under the “rescission” procedures of section 242B(c).
The delay in the present case resulted from understandable procedural confusion that should be resolved, at least in part, today. In any event, in our view
the holding in this case more likely will eliminate delay than cause it.
Finally, the Immigration Judge expressed concern that the application of
section 242B in the current case would obviate the “good cause” standard
used by an Immigration Judge to determine when a continuance should be
granted. See 8 C.F.R. § 242.13 (1995); see also
8 C.F.R. § 3.20(b) (1995). We
do not find such to be the case. An Immigration Judge retains the authority to
grant a continuance or change venue when good cause is shown by an alien or
the Service, either prior to or at the time of the deportation hearing. See, e.g.,
Romero-Morales v. INS,
25 F.3d 125, 128 (2d Cir. 1994) (finding that an
Immigration Judge was not precluded from considering a pending change of
venue motion in a case where counsel appeared at the scheduled deportation
hearing on the alien’s behalf).
Moreover, if an Immigration Judge has properly excused the alien’s
appearance at a hearing (e.g., where it is impracticable for an alien to appear
due to mental incompetence or where an infant alien’s attendance with his or
her parents at a hearing is excused as unnecessary), the statute of course does
not compel the Immigration Judge to enter an order of deportation in absentia. See, e.g., 8 C.F.R. § 242.11 (1995). Inherent in the “failure to appear” provisions of section 242B is the concept of unauthorized absence from
deportation proceedings. Where a deportation hearing has been recalendared
for good cause shown or when an alien’s appearance has been otherwise
excused, section 242B would not apply.
However, if an absent alien’s presence at a deportation hearing has not
been excused and any request for a rescheduling of the hearing has not been
granted, the provisions of section 242B(c) of the Act apply. Thereafter, under
the “rescission” provisions of section 242B(c), a challenge to the entry of any
in absentia order based on the alien’s failure to appear can only be sustained if
the failure to appear was because of “exceptional circumstances,” the
absence of adequate notice, or the alien was in federal or state custody and
did not appear through no fault of the alien. In seeking to demonstrate
“exceptional circumstances,” a respondent can present the reasons underlying the request for a continuance, along with any other reasons for his or her
absence, in the motion to reopen filed before the Immigration Judge under
section 242B. See Romero-Morales v. INS, supra, at 129-30.
508
Interim Decision #3288
IV. EVALUATION OF THE RESPONDENT’S FAILURE TO
APPEAR
In light of the above discussion, the respondent’s motion to reopen following the in absentia order in this case must be evaluated under section
242B(c)(3)(A) of the Act. That section provides that such an order can only
be rescinded because of “exceptional circumstances.” Section 242B(f)(2) of
the Act, in turn, defines “exceptional circumstances” as follows:
The term “exceptional circumstances” refers to 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.
The respondent failed to appear for his deportation hearing because he was
on a fishing vessel for employment purposes. We agree with the Immigration
Judge that this excuse does not rise to the level of exceptional circumstances
as set forth above. In this regard, we note that one must look to the “totality of
circumstances” to resolve this issue of exceptional circumstances. See H.R.
Conf. Rep. No. 955, 101st Cong., 2d Sess. 132 (1990), reprinted in 1990
U.S.C.C.A.N. 6784, 6797 (“[T]he conferees expect that in determining
whether an alien’s failure to appear was justifiable the Attorney General will
look at the totality of the circumstances to determine whether the alien could
not reasonably have been expected to appear.”)
Here, the respondent’s situation has not been shown to be “exceptional,”
unforeseeable, or in any way beyond his control. Rather, after due warning
from the Immigration Judge to his counsel, the respondent elected to pursue
his business interests rather than attend a deportation hearing scheduled long
in advance. Without suggesting whether such would be an explanation
amounting to exceptional circumstances, we note that there is no evidence
that the respondent departed on the commercial fishing vessel prior to the
institution of the deportation proceedings or the scheduled hearings. There is
no evidence that he could not have returned at some point prior to the hearing
dates. The letter from his employer referencing the impossibility of getting
him off the vessel “at this time” was dated the day before the final deportation
hearing. Furthermore, the hearing had already been recalendared once and
respondent’s counsel specifically warned that no further adjournments would
be permitted on these grounds. Finally, we note that the respondent had many
months to arrange for his attendance, yet waited until the day of the hearing to
pursue a request for a continuance. Considering all these facts, the Immigration Judge properly found that “exceptional circumstances” had not been
demonstrated for the respondent’s failure to appear on September 23, 1994.
In sum, the respondent has not presented exceptional circumstances for
his failure to appear at his deportation hearing as mandated under the provisions of section 242B(c)(3)(A). Therefore, the decision of the Immigration
Judge denying the respondent’s motion to reopen will be affirmed.
ORDER: The decision of the Immigration Judge is affirmed.
509
Interim Decision #3288
CONCURRING AND DISSENTING OPINION: Lory D. Rosenberg,
Board Member
I respectfully concur in part and dissent in part.
I agree with the ultimate conclusion of the majority. However, in my view
that conclusion begs the question(s) raised by the Immigration Judge who
certified this case to this Board. The majority decision does not, in my view,
explicitly address, as a practical matter, how to handle the variety of circumstances in which in absentia deportation issues may be implicated on a daily
basis before Immigration Judges. Further, to the extent the majority opinion
suggests, or could be read to suggest, either that the only motion which may
be filed following an in absentia order is a motion to reopen to rescind under
section 242B(c)(3) of the Immigration and Nationality Act, 8 U.S.C.
§ 1252b(c)(3) (1994), or that an alien’s unauthorized absence from a hearing
absolutely extinguishes all applications for relief, I believe the opinion
requires clarification.
Consequently, I write separately concerning my interpretation of how and
when the Immigration Judges and this Board shall determine whether an
alien ordered deported in absentia could make or has made an effective rebuttal of proper notice, could demonstrate or has demonstrated an excused
absence on account of being held in custody or for extraordinary circumstances, or, for that matter, has established eligibility for reopening to seek a
grant of discretionary relief from deportation before the Immigration Judge.
In addition, I write to distinguish emphatically the regulatory motion to
reopen procedures which are not governed or affected by the statutory provisions of section 242B of the Act. See 8 C.F.R. §§ 103.5, 244.22 (1995).
First, I agree that principles of statutory construction support section
242B(c)(1) being applicable to unexcused absences at various stages of
deportation proceedings. It is correct to state that the issue before us is, in
large part, one of statutory construction. As I have indicated, I am in accord
with the premise that section 242B does not limit the entry of an in absentia
deportation order only to the initial hearing or to the “deportability” phase of
the proceedings.
In addition to the reasons put forth by the majority, I note that the statutory
language in section 242B(c)(1) mandates that the alien “shall be ordered
deported,” not “be found deportable,” which I read as a plain indication that
Congress was treating deportation proceedings comprehensively, as the
Supreme Court did under Foti v. INS, 375 U.S. 217 (1963), to encompass the
adjudication of deportability and ancillary applications for relief from deportation. Further, I note that the recent amendments to
8 C.F.R. §§ 3.1, 3.23,
and 242.21, see
61 Fed. Reg. 18,900 (1996), to be effective July 1, 1996, pertaining to motions to reopen, do not distinguish between various stages of
deportation proceedings resulting in absentia orders. Therefore, I concur
with the majority that the statutory language and implementing regulations
510
Interim Decision #3288
provide undifferentiated authority allowing Immigration Judges to issue in
absentia orders throughout the course of deportation proceedings. I use the
term “allowing” rather than “requiring” because, as I discuss herein, while
the provisions of the statute are mandatory, nowhere do they expressly supersede the discretion of the Immigration Judge to otherwise conduct deportation proceedings according to the statute and regulations.
Second, the distinct statutory language of section 242B(c)(1) compared
with that of section 242B(e) does not support identical treatment of applications for relief from deportation. Neither the statutory language nor the legislative history supports an interpretation which renders section 242B(c)(1)
more a penalty provision than a deliberate measure to achieve prompt determinations and closure in the cases of deportable aliens. The overriding objective of Congress in enacting section 545 of the Immigration Act of 1990, Pub.
L. No. 101-649, 104 Stat. 4978, 5061-67, was to bring aliens to their hearings, and the legislative history does not contain a punitive intent. See generally Gomez, The Consequences of Nonappearance: Interpreting New
Section 242B of the Immigration and Nationality Act,
30 San Diego L. Rev.
75, part II. B. (1993) (S. 358 Conference Committee report incorporated certain previously excluded enforcement provisions to ensure that aliens were
properly notified and in fact would appear for their hearings).
To the extent that the majority contends that “the notice provisions of this
section do not differentiate between hearings which address deportation
charges and those which address applications for relief from deportation,”
see supra p. 5, I must disagree. In fact, the language of the statute makes clear
that there are substantive distinctions between the notice requirements and
the attendant consequences which attach to certain phases of the hearing and
certain forms of relief from deportation. As the majority notes, citing K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988), a construction of the statutory language which takes into account the design of the statute as a whole is
preferred. See also COIT Independence Joint Venture v. Federal Sav. and
Loan Ins. Corp.,
489 U.S. 561 (1989) (“whole statute” interpretation dictates
that statutory sections should be read in harmony to achieve a harmonious
whole).
The statute addresses, specifically and in plain language, the written
notice which must be provided in order to initiate and to proceed with an in
absentia hearing. An Order to Show Cause or a subsequent notice containing
notice of the time and place of the initial or rescheduled hearing, as well as
the consequences of failure to appear and the exception to those consequences, must be provided to the alien in person, or if personal service is not
practicable, by certified mail to the alien or the alien’s counsel of record. See
sections 242B(a)(1), (2) of the Act. This Board has construed this statutory
requirement to be satisfied, at least in the latter case, upon mailing through
the United States Postal Service to the alien’s most recent address provided
under section 242B(a)(1)(F) of the Act. Matter of Grijalva, 21 I&N Dec. 27
511
Interim Decision #3288
(BIA 1995). However, I note that to date, we have not specifically addressed
in a published decision the adequacy of the content of the notice.
Also on its face and by the use of plain language, the statute imposes distinct disqualifications from applying for or being granted certain forms of
relief from deportation resulting from failure to appear after proper notification. See section 242B(e)(5) of the Act, which itemizes the forms of relief
barred, presuming proper notice has been given and an unexcused failure to
appear occurs. For these consequences, above and beyond the entry of the in
absentia order, to take effect, the form of notice must be both oral and written.
See section 242B(e)(1) of the Act, which refers to oral notice “either in the
alien’s native language or in another language the alien understands,” having
been given “at the time of the notice provided in subsection (a)(2).” Section
242B(e)(4)(B)(i), pertaining to proceedings involving asylum applications,
requires written notice “in English and Spanish” and “oral notice either in the
alien’s native language or in another language the alien understands.”
By contrast, no such limitations on granting relief are imposed under section 242B(c)(1) of the Act. An individual who was provided notice to appear
under section 242B(c)(1) and who may be subject to an in absentia order of
deportation is not necessarily forced to forfeit a pending application for relief
from deportation not barred by the terms of the statute.
Third, I believe that the Immigration Judge may address the relevant
issues which either precede or flow from the rule that in absentia orders may
be entered at various stages of the proceedings. As suggested by the Immigration Judge in certifying this case for our review, in many cases, the prudent determinations of the Immigration Judge may be better exercised before
the fact. Thus, I believe the better reading of the statute is to allow latitude to
the Immigration Judge to address, at the time that failure to appear occurs, the
cases of those aliens whose nonappearance may be excusable on the statutory
grounds of either defective notice, custody, or extraordinary circumstances,
as characterized by the majority.
The circuit courts of appeals which have addressed this issue have indicated a concern with a narrow, literal reading of the in absentia provisions,
see, e.g., Romero-Morales v. INS, 25 F.3d 125 (2d Cir. 1994), and most likely
would affirm an approach which gives effect to the statute without inordinately burdening either the alien or the hearing process. I think that decision,
cited by the Immigration Judge, deserves further consideration. While in that
case, the United States Court of Appeals for the Second Circuit addressed
specifically a motion for change of venue, there is no reason to conclude that
such an approach is not equally appropriate with respect to other procedural
matters affecting the handling of other cases.
I do not pretend to be able to forecast the entire panoply of situations in
which an Immigration Judge may be otherwise required to enter an in absentia order under section 242B(c)(1) of the Act according to the decision we
reach today. However, it is not difficult to project various scenarios in which
512
Interim Decision #3288
the Immigration Judge might opt for a more practical resolution which comports with the dual goals of fairness and efficiency in deportation
proceedings.
For example, a respondent, having an arguable claim of defective notice
based on a properly submitted change of address not apparent in the record
file, may have belatedly received notice through third persons at his or her
correct and current address. If that individual or her attorney contacts the
Immigration Court just prior to or on the hearing date and acknowledges
actual notice but the inability to appear because of the brevity of notice in
light of the travel distance, I see no reason to require an Immigration Judge to
enter an in absentia order simply by virtue of the alien’s failure to appear,
only to be faced thereafter with the respondent’s motion to rescind to reopen.
Rather, the Immigration Judge could continue the case, or with the alien’s
consent handle it telephonically. If that individual arrives an hour or two after
the scheduled hearing time, I see no reason simply to issue or to maintain an
already issued in absentia order. Rather, an Immigration Judge could opt to
vacate and revise his or her order to then and there acknowledge the situation
and simply reschedule proceedings. See Thomas v. INS, 976 F.2d 786 (1st
Cir. 1992) (Breyer, J., concurring) (finding that tardiness at the hearing did
not significantly interfere with the Immigration Judge’s ability to conduct it;
and that the Board acted arbitrarily in refusing to order a new hearing, procedural interference, and the serious claim for relief from deportation).
Also, for example, if a respondent, family member or other medical professional or official contacts the Immigration Court from an emergency room
where the respondent awaits treatment following a traffic accident on or
close to the day of the scheduled proceeding, and documentation of that situation is provided, I see no reason for an Immigration Judge to have to enter an
in absentia ruling only to later rescind it in the context of a motion to reopen.
Instead the Judge may assess and rule upon the situation immediately, albeit
in the context of adjudicating a continuance. Similarly, an attorney or representative of the respondent may appear before the Immigration Judge on the
appointed date and present comparable information on behalf of a client. Certainly in such cases, local Immigration Court rules should ordinarily be followed, and there should be service by the respondent upon the Immigration
and Naturalization Service that such events have transpired. However, in
appropriate cases an Immigration Judge could either grant a continuance or
excuse the respondent’s absence. I also believe that an Immigration Judge
may take notice of such circumstances as the physical relocation of the Immigration Court between an original and a continued proceeding, which may
have engendered confusion and resulted in a failure to appear.
Further, I believe that the existing regulations provide the Immigration
Judge with authority to so act. In addition to the Immigration Judge’s authority to order a continuance or adjournment of the proceedings, and her or his
authority to excuse the presence of a minor or mentally impaired person
513
Interim Decision #3288
pursuant to 8 C.F.R. § 242.13 (1995) or
8 C.F.R. § 242.11 (1995), recognized
by the majority,
8 C.F.R. § 3.25 (1995) allows an Immigration Judge to waive
the respondent’s appearance where the alien is represented. This regulation
provides even broader authority to excuse the presence of the respondent in
such proceedings.
Moreover, I believe that
8 C.F.R. § 3.25 counters any argument that an
Immigration Judge is divested of authority to grant relief in the case of an
alien who fails to appear, but whose counsel appears. For example, assume
that an Immigration Judge has heard extensive testimony and/or received
into the record probative and compelling documentation supporting either a
grant of political asylum, or in the alternative, voluntary departure. For some
reasons, perhaps unknown, the respondent fails to appear at the scheduled
proceeding in which the Immigration Judge will deliver his or her oral decision. In such a situation, in my view, the Immigration Judge need not simply
enter an in absentia order; rather, he or she has the latitude to determine that
the respondent’s presence is excused and proceed to render the oral decision
and order in the case. In particular, as I read the statute and regulations
together, in the instant case, the Immigration Judge might have opted to deny
a continuance but simply excused the respondent’s absence and granted voluntary departure.
In other words, I see nothing in the statute that so limits the Immigration
Judge’s discretion to achieve precisely the result which he declared originally in this case. As I read the holding of the majority, with which I concur, it
is more a matter of semantics and the election of which procedure to invoke.
Indeed, as the majority acknowledges, our decision today does not tie the
Immigration Judge’s hands or limit his or her discretion to independently
assess the individual circumstances that might warrant a result other than an
in absentia deportation order.
Fourth, our ruling does not address or bar otherwise proper motions to
reopen for relief based upon recently acquired eligibility or evidence which
was not previously available which might affect the outcome. A motion to
reopen to rescind is distinct from a motion to reopen, and each is governed by
separate provisions in the regulations. Our holding today that the in absentia
order may be challenged only under section 242B(c)(3) of the Act, does
not—and should not—be read to foreclose an alien from seeking to reopen
such a deportation proceeding for consideration of an application for political
asylum, or for any other forms of relief from deportation that may be available according to the terms of the current statute not barred by section
242B(e) as the result of proper notification having been given under section
242B(e)(1).
Thus, I can agree that an alien who, having had proper notice and lacking a
showing, before or after the fact, as I have discussed, of defective notice or
extraordinary circumstances, fails to appear for a deportation hearing, is subject to entry of an order of deportation, upon a finding that deportability has
514
Interim Decision #3288
been established by the Service by clear, unequivocal, and convincing evidence. However, I do not agree with the majority opinion to the extent it
states or gives the impression that the only action then available to an Immigration Judge is entry of such an order, and that the only mechanism by which
an Immigration Judge may further adjudicate or resolve the case before her or
him is through a motion to reopen to rescind under section 242B(c)(3).
515
