SINGH

Interim Decision #3324




                   In re Kanwaljit SINGH, Respondent

                          File A70 942 039 - Los Angeles

                      Decided as amended August 11, 19971

                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals

  Matter of Shaar, 21 I&N Dec.541 (BIA 1996), is not applicable to an alien who was ordered
deported at an in absentia hearing and has therefore not remained beyond a period of voluntary
departure; consequently, the proceedings may be reopened upon the filing of a timely motion
showing exceptional circumstances for failure to appear. Matter of Shaar, supra, distinguished.

David Glenn Spivak, Esquire, Beverly Hills, California, for respondent

Before:Board Panel: SCHMIDT, Chairman; HURWITZ and ROSENBERG, Board Members.

SCHMIDT, Chairman:

    The respondent has filed a timely appeal of an Immigration Judge’s September 9, 1996, denial of his motion to reopen to rescind an in absentia deportation order entered on March 8, 1996. The appeal will be sustained. The
request for oral argument is denied. 

(e) (1997).

                          I. PROCEDURAL HISTORY
    On March 8, 1996, an Immigration Judge ordered the respondent deported
to India in absentia after the respondent failed to appear for his initial deportation hearing. On July 9, 1996, the respondent submitted a motion to reopen
and requested a stay of deportation. He stated in this motion that he is the beneficiary of a visa petition filed on his behalf by his United States citizen wife
and that his step-son’s illness on the day of his initial hearing prevented him
from appearing at the hearing at the scheduled time. The Immigration Judge
denied the motion on July 23, 1996, on evidentiary grounds, stating that the
respondent had failed to provide affidavits in support of his claim of reopening based on exceptional circumstances.
  1 On our own motion, we amend the June 26, 1997, order in this case. The amended order

makes editorial changes consistent with designating the case as a precedent.

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   Subsequently, on August 21, 1996, the respondent filed with the Immigration Court a request to reconsider the previously filed motion to reopen. He
attached to this motion several exhibits, including a completed Application to
Register Permanent Residence or Adjust Status (Form I-485) and a signed
affidavit by the respondent in which he stated that he was 15 minutes late for
his deportation hearing because he did not want to leave his ill step-son unattended at home and had to wait for his wife to return from a trip to the market
where she had gone to buy medication for their child. The Immigration and
Naturalization Service filed a memorandum indicating it did not oppose
reopening.
   On September 9, 1996, the Immigration Judge entered a decision denying
reopening, stating that he lacked jurisdiction under Matter of Shaar, 

 (BIA 1996), as a result of the expiration of the respondent’s voluntary departure period. It is this denial that is being appealed.

                     II. ARGUMENT ON APPEAL
   In the Notice of Appeal and his accompanying brief, the respondent
asserts that the Immigration Judge erroneously denied reopening. The
respondent contends that, contrary to the decision of the Immigration Judge,
Matter of Shaar, supra, does not bar reopening, as the respondent had never
been granted voluntary departure.

                              III. ANALYSIS
   We agree with the respondent. The Immigration Judge’s conclusion that
he was divested of jurisdiction over the motion to reopen and barred from
granting reopening by this Board’s decision in Matter of Shaar, supra, is
incorrect. In Matter of Shaar we held that neither the filing of a motion to
reopen prior to the expiration of a respondent’s voluntary departure period
nor the Immigration Judge’s failure to adjudicate the motion prior to the expiration of that period constitutes exceptional circumstances on which reopening may be based.
   In the instant case, however, overstay of a voluntary departure period is
not an issue. The respondent’s March 8, 1996, in absentia deportation order
does not provide him with a period to voluntarily depart the United States.
Instead, it orders his immediate deportation to India. Accordingly, the
respondent could not have remained in the United States beyond his period of
voluntary departure because this form of relief was never granted. Therefore,
Matter of Shaar, supra, is not directly applicable to the facts at hand and does
not preclude reopening based on exceptional circumstances.
   Turning to the merits of the respondent’s motion to reopen, we note that
section 242B(c)(3) of the Immigration and Nationality Act, 8 U.S.C.
§ 1252b(c)(3) (1994), provides in relevant part that a motion to reopen to
rescind an in absentia deportation order may be granted if exceptional

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circumstances are shown and the motion is filed within 180 days of the in
absentia deportation order. Section 242B(f)(2) of the Act encompasses compelling circumstances such as those described by the respondent.
   The respondent has submitted a signed affidavit evidencing that his
step-son’s illness was responsible for his 15-minute delay in arriving at his
deportation hearing. Moreover, the Service does not contest the fact that
exceptional circumstances have been established, nor does it oppose reopening the instant matter. Under these circumstances, we conclude that the
respondent has established exceptional circumstances which merit reopening. Finally, the respondent’s August 21, 1996, motion was filed within the
statutorily required 180-day period following his March 8, 1996, in absentia
deportation order. As the statutory requirements for reopening have been
met, the appeal will be sustained and reopening will be granted.
   ORDER:           The appeal is sustained, the proceedings are reopened,
and the record is remanded to the Immigration Judge for further proceedings.




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