E. A. C. A. v. Rosen

• Decision Date: 12 January 2021
• Docket Number: No. 20-3216,20-3216
• Citation: 985 F.3d 499
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: E. A. C. A., Petitioner, v. Jeffrey A. ROSEN, Acting Attorney General, Respondent.

985 F.3d 499

E. A. C. A., Petitioner,

v.Jeffrey A. ROSEN, Acting Attorney General, Respondent.

No. 20-3216

United States Court of Appeals, Sixth Circuit.

Argued: December 2, 2020

Decided and Filed: January 12, 2021

ARGUED: Rachel Naggar, CATHOLIC LEGAL IMMIGRATION NETWORK, INC., Silver Spring, Maryland, for Petitioner. Joanna L. Watson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Rachel Naggar, CATHOLIC LEGAL IMMIGRATION NETWORK, INC., Silver Spring, Maryland, for Petitioner. Joanna L. Watson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: MOORE, GILMAN, and GRIFFIN, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge.

E.A. C.A. ("E.A.") petitions this court for review of the order of the Board of Immigration Appeals ("BIA") denying her motion to reopen an in absentia removal order. Because the BIA abused its discretion in concluding that E.A. had not established that exceptional circumstances justified her failure to appear, we GRANT the petition for review, VACATE the removal order, and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

E.A. is a native and citizen of El Salvador. Administrative Record ("A.R.") at 212 (Notice to Appear). In November 2016, when E.A. was twelve years old, she unlawfully entered the United States as an unaccompanied minor. Id. The Office of Refugee Resettlement ("ORR") released E.A. to her mother, who resided in New York. Id. at 153 (Verification of Release). E.A. failed to appear at a June 6, 2018 hearing and was ordered removed in absentia . A.R. at 174 (Removal Order).

A. E.A.’s Removal Proceedings

On March 3, 2017, the U.S. Department of Homeland Security (DHS) mailed a Notice to Appear to E.A. A.R. at 213 (2017 Notice to Appear). Shortly after ORR released E.A. to her mother, her family relocated to Arkansas to help take care of her aunt's children. Id. at 144 (Aff. of E.A.), 148–49 (Aff. of Yessenia Carolina Anaya Ortiz). In Arkansas, Catholic Charities assisted E.A. in preparing a Motion to Change Venue from Executive Office of Immigration Review ("EOIR") New York City to EOIR Memphis, Tennessee and her Change of Address Form, both of which she filed pro se . Id. at 149 (Aff. of Anaya Ortiz), 203–06 (Mot. to Change Venue), 207–08 (Change of Address Form).

On May 15, 2017, the Immigration Judge ("IJ") granted E.A.’s Motion to Change Venue. Id. at 202 (Order Granting Changing Venue). Latino Memphis's Remote Access Initiative, which represents unaccompanied minors who live more than 100 miles from the Memphis EOIR, agreed to represent E.A. pro bono in her immigration proceedings. Id. at 190 (Mot. to Change Docket). On October 30, 2017, DHS sent E.A. a "Notice of Hearing in Removal Proceedings" at the Memphis EOIR for January 3, 2018. Id. at 187. Latino Memphis appeared on behalf of E.A. in a telephonic hearing on January 3, 2018. Id. at 183–84. On the date of the hearing, DHS sent E.A. a notice that it had scheduled her master-calendar hearing for June 6, 2018 at the Memphis EOIR. Id. at 175 (Notice of Hr'g). A few months later, on April 24, 2018, E.A.’s counsel filed a motion to withdraw its representation of E.A., stating that E.A. had moved out of Latino Memphis's covered geographic area to New York, counsel was no longer employed at Latino Memphis, and there had been a "substantial breakdown in communication" between the parties. Id. at 176–78 (Mot. to Withdraw as Att'y of Record).

B. Failure to Appear

E.A. failed to appear at her June 6, 2018 master-calendar hearing. Id. at 174 (Removal Order). In E.A.’s absence, the IJ noted that she had admitted the factual allegations in the NTA and conceded removability at her prior hearing, and ordered her removed in absentia . Id.

On November 30, 2018, E.A., with the assistance of counsel, filed a motion to reopen her immigration proceedings. Id. at 130 (Mot. to Reopen). This time, Catholic Charities was able to represent E.A. in her motion to reopen the case. Id. E.A. asserted that, based on the totality of circumstances, exceptional circumstances excused her failure to appear at her immigration hearing. First, E.A. was unable to obtain legal counsel to assist her in changing her hearing location. Between the initial hearing and the June 6, 2018 hearing, E.A.’s mother moved the family back to New York because her sister had returned to Arkansas to take care of the children and her mother's partner, Carlos, had a job in New York. Id. at 145 (Aff. of E.A.), 149 (Aff. of Anaya Ortiz). After E.A. moved outside Memphis Latino's geographic area, she was also unable to find new representation in New York. In a declaration submitted with E.A.’s motion to reopen, her mother states that she brought E.A. for a consultation with Catholic Charities in Amityville, New York for assistance with E.A.’s case. Id. at 149 (Aff. of Anaya Ortiz). But Catholic Charities was unable to accept new cases, including E.A.’s case, at that time. Id . Unable to find pro bono representation, E.A.’s mother tried to hire a private immigration attorney but could not afford the hefty attorney's fees. Id. at 150. Without legal representation, E.A.’s mother did not know how to change the address of the hearing herself. Id . Her partner Carlos called the Memphis EOIR to change E.A.’s address but was unable to change it because he did not know E.A.’s alien number. Id.

Second, E.A. was unable to travel from New York to Memphis to attend the hearing in-person. E.A.’s mother was unable to drive E.A. to Memphis herself because she had just given birth on May 26, 2018—ten days prior to E.A.’s hearing. Id. E.A.’s mother did not want E.A. to fly to the hearing by herself because E.A. did not have documentation. Id. Carlos was unable to drive her to the hearing because it would take nearly one week to drive her to Memphis and back and he was unable to miss that much work. Id.

Further, E.A. asserted that she had reason to appear at her hearing because she was eligible for immigration relief, namely Special Immigrant Juvenile Status ("SIJS"). Id. at 151. While living in Arkansas, E.A.’s mother had begun the process of obtaining the required orders for SIJS. Id. E.A.’s mother abandoned the process when the family returned to New York but stated in her affidavit that she intended to file a new Guardianship petition in New York and then file an SIJS petition. Id.¹

The IJ denied E.A.’s request to reopen her removal proceedings on the ground that she had failed to establish that exceptional circumstances prevented her from appearing at her hearing. Id. at 11 (IJ Decision). The IJ did not find E.A.’s reasons for being unable to travel to the Memphis EOIR to be persuasive. Id. at 12–13. The IJ dismissed difficulties posed by E.A.’s mother's recent delivery of a baby because "respondent's mother knew she was pregnant and the date of Respondent's hearing," and E.A. "could have made arrangements or contacted the Court prior to the hearing." Id . at 12. As to E.A.’s inability to travel from New York to Memphis, the IJ blamed E.A. for not "attempt[ing] to contact anyone else that may have been able to provide transportation." Id . at 13. Further, the IJ faulted E.A. for failing to file another motion to change venue, as she had previously done. Id. at 13. The IJ, however, did not acknowledge E.A.’s mother's assertion that she had received assistance filing the Motion to Change Venue the first time, and that she was unable to obtain legal assistance the second time. Notably, the IJ's decision does not mention E.A.’s claims that she was eligible for SIJS.

E.A. timely appealed the IJ's decision to the BIA, which subsequently affirmed the IJ's denial. First, the BIA stated that E.A.’s minor age was not per se an exceptional circumstance to excuse her failure to appear at the hearing. Id . at 3 (BIA Decision). The BIA then turned to the totality-of-the-circumstances test and affirmed the IJ's finding that E.A. had failed to show that her failure to appear at the scheduled hearing was the result of exceptional circumstances. Id . at 4. The BIA reiterated the IJ's finding that, although her mother had recently had a baby, this was not a compelling excuse because her "mother knew of [E.A.’s] hearing date and that [the mother] was pregnant in advance, and that [E.A.] could have contacted the Immigration Court prior to the hearing." Id . The BIA dismissed as insufficient E.A.’s mother's assertion that her partner contacted the immigration court prior to the hearing but was unable to change the date because he did not know E.A.’s alien number. Id. Even if E.A.’s mother had prior assistance in filing E.A.’s Motion to Change Venue and Change of Address Forms, the forms stated that E.A. filed pro se and she failed to explain adequately why she could not file the second set of forms pro se . Id. E.A. had also not attempted to find someone else to transport her from New York to the Memphis EOIR. Id. Further, the BIA found that E.A. had not provided sufficient evidence that she was eligible for SIJS. Id.

Nevertheless, the BIA concluded that "even if the respondent had established ‘exceptional circumstances’ to rescind the in absentia removal order, reopening her removal proceedings would not be warranted as she failed to establish prima facie eligibility for any form of relief and has not shown that the outcome of her case would change if the case were reopened." Id .²

E.A. timely petitioned this court for review. We have jurisdiction to hear petitions for review of final removal orders, 8 U.S.C. § 1252(a), including orders entered in absentia , 8 U.S.C. § 1229a(b)(5)(D).

II. STANDARD OF REVIEW

"We review the denial of a motion to reopen under the abuse-of-discretion standard." Acquaah v. Holder , 589 F.3d 332, 334 (6th Cir. 2009). In the case of a denial of a motion to reopen, we look to whether the denial "was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible...