Hernandez-Vivas v. I.N.S.

• Decision Date: 11 March 1994
• Docket Number: P,HERNANDEZ-VIVA,No. 92-70605,92-70605
• Citation: 23 F.3d 1557
• Parties: Ricardoetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1557

23 F.3d 1557

Ricardo HERNANDEZ-VIVAS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 92-70605.

United States Court of Appeals, Ninth Circuit.

Submitted March 11, 1994 ^*.

Decided May 11, 1994.

Anne Pilsbury, Central American Legal Assistance, Brooklyn, NY, for petitioner.

Stuart M. Gerson, David J. Kline, David V. Bernal, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before: BRIGHT ^**, WIGGINS, and T.G. NELSON, Circuit Judges.

Opinion by Judge WIGGINS; Concurrence by Senior Circuit Judge BRIGHT.

WIGGINS, Circuit Judge:

Ricardo Hernandez-Vivas ("Hernandez") petitions for review of an order from the Board of Immigration Appeals (BIA). Hernandez seeks to reopen his deportation proceedings so that he may apply for asylum and withholding of deportation. At a deportation hearing held in absentia, an immigration judge (IJ) found that Hernandez was deportable. Later, the IJ denied Hernandez's motion to reopen on the ground that Hernandez failed to explain his absence at the deportation hearing.

The BIA dismissed the appeal, finding that Hernandez did not establish reasonable cause for his failure to appear. The BIA reasoned that, while Hernandez filed a motion to change venue, he was still required to appear because his motion had not been granted prior to the hearing date. Hernandez appeals. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a(a). We deny the petition.

I.

Hernandez is a 45-year-old native and citizen of El Salvador. He is a political activist. Hernandez asserts that his brother and two cousins were killed by death squads in 1980. His wife, son and three daughters live in El Salvador.

Hernandez entered the United States without inspection near San Ysidro, California, on October 20, 1991. He was arrested by U.S. immigration authorities and an Order to Show Cause was issued. Hernandez was charged with deportability under Section 241(a)(1)(B) of the Immigration and Naturalization Act, 8 U.S.C. Sec. 125(a)(1)(B). A deportation hearing was scheduled for November 13, 1991, in El Centro, California. A motion to change venue to Los Angeles was filed and granted. A new deportation hearing was scheduled for December 19, 1991, before IJ Roy J. Daniel. Hernandez appeared at the December 19, 1991, hearing and requested time to seek legal counsel. The IJ adjourned the hearing until January 9, 1992, and notified Hernandez of the consequences of failure to appear at the hearing.

Hernandez then went to New York and sought legal aid. On December 30, 1991, he moved for a change of venue to New York, stating that it would be a hardship for him to return to Los Angeles. He further explained that he had obtained free legal counsel in New York and had access in New York to witnesses who could corroborate his asylum claim. In addition, he signed an affidavit conceding deportability. The motion to change venue and affidavit were sent by regular mail.

Hernandez asserts that he then waited for the immigration court to respond and schedule The immigration judge held the January 9, 1992, hearing in absentia pursuant to Section 242(b) of the Act, 8 U.S.C. Sec. 1252(b). ¹ The immigration judge found Hernandez deportable as charged. On February 6, 1992, Hernandez filed a motion to reopen his deportation proceedings on the ground that he had a reasonable cause for his failure to appear: he had filed a timely motion to change venue. Hernandez also submitted at this time an asylum application.

                a new hearing in New York.  Hernandez did not inquire about the status of the motion.  But, the IJ never received Hernandez's papers.  Apparently, the papers were misplaced or misfiled by someone at the Post Office or in the immigration court.  (Hernandez alleges that the envelope sent to the immigration court never came back to him in return mail.)   The papers were, however, received by the INS on January 2, 1992
                

On February 27, 1992, the IJ denied Hernandez's motion to reopen, finding that reopening was not warranted because Hernandez had failed to explain his absence at the January 9, 1992, hearing. The IJ stated, "In the absence of good cause (and in this case no cause [was] shown) reopening is not permitted." The IJ did not address Hernandez's explanation that the motion to change venue had been lost in the mail or in the immigration court files. Rather, the IJ simply stated, the record "fails to disclose any change of venue request until February 6, 1992."

On July 7, 1992, the BIA dismissed Hernandez's appeal. Noting that Hernandez had filed a motion to change venue prior to the scheduled hearing, the BIA held that "the fact that such a filing was made in no way obviated the respondent's obligation to attend the scheduled hearing." Hernandez filed a timely petition for review.

II.

A. Does Filing a Motion to Change Venue Give an Alien Reasonable Cause Not to Appear at his Deportation Hearing?

When the basis of an alien's motion to reopen is that the IJ held a deportation hearing in absentia, the alien must establish "reasonable cause" for his absence. In re Haim, 19 I. & N. Dec. 641 (BIA 1988). If the alien has reasonable cause for failing to appear, the motion will be granted; if the alien does not, the motion will be denied. Id.

The primary issue before the court is whether having filed a timely motion to change venue establishes reasonable cause for absence at a deportation hearing. This is an issue of first impression in the Ninth Circuit. We hold that the mere filing of a motion to change venue does not establish reasonable cause.

Hernandez argues that he had reasonable cause for failing to appear at his deportation hearing because he had filed a timely motion to change venue. He stressed that while the motion had not been granted, it had also not been denied. Hernandez further argues that his failure to inquire as to the status of his motion to change venue was reasonable. He contends that, based on the following four factors, he had no reason to believe the motion would be denied. First, agency regulations and BIA case law allow for a change of venue. See 8 C.F.R. Sec. 3.20; In re Smith, 16 I. & N. Dec. 146 (BIA 1977). Second, he had conceded deportability. Thus, the INS would not be prejudiced by holding the hearing away from the point of arrest. See In re Rivera, 19 I. & N. Dec. 688 (BIA 1988). Third, motions to change venue, when timely filed and accompanied by an affidavit conceding deportability, "had always been granted by Los Angeles judges." Finally, the motion to change venue was his first such motion. ² Cf. In re Nafi, 19 I. & N. Dec. 430 (BIA The INS argues that an alien who has filed a motion to change venue but has not been granted the motion prior to the scheduled hearing, must appear at the scheduled hearing. Specifically, the INS asserts, such an alien does not establish "reasonable cause" for his failure to appear because it is unreasonable to "assume that the motion to change venue will be granted." The INS further argues that it is unreasonable not to inquire prior to the scheduled hearing about the status of the motion to change venue. Had Hernandez so inquired, he could have learned that the motion had not been received and sought to cure the deficiency.

1987) (affirming an IJ's denial of a motion to change venue from Las Vegas to New York when the alien had already been granted one motion to change venue, even though he lived and worked in New York, would face substantial hardship if required to travel to Las Vegas, and had no contacts with Las Vegas).

The denial of a motion to reopen is subject to an abuse of discretion standard. INS v. Doherty, --- U.S. ----, ----, 112 S.Ct. 719, 725, 116 L.Ed.2d 823 (1992). But, we review de novo the INS's construction of the definition of "reasonable cause" set forth in Section 242(b) of the Act, 8 U.S.C. Sec. 1252(b). See Ayala-Chavez v. INS, 944 F.2d 638, 641 (9th Cir.1991). The INS's interpretation is, however, entitled to considerable deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). See Mahini v. INS, 779 F.2d 1419, 1420 (9th Cir.1986).

In Maldonado-Perez v. INS, 865 F.2d 328 (D.C.Cir.1989), the D.C. Circuit held that the mere submission of a motion to change venue does not constitute reasonable cause. Id. at 335. The Maldonado-Perez court noted that an alien's obligation to attend a deportation hearing continues until the motion is granted. Id.; accord Wijeratne v. INS, 961 F.2d 1344, 1347 (7th Cir.1992) (finding that an alien's motion to change venue, which, apparently without the alien's knowledge, was denied four days before the scheduled hearing date, "does not excuse her failure to appear"); see also Patel v. INS, 803 F.2d 804, 806 (5th Cir.1986) (holding that the failure to appear at a deportation hearing is unreasonable when a motion for continuance is still pending at the time of the hearing); Rivera, 19 I. & N. Dec. at 690 ("Unless the immigration judge grants a continuance, for change of venue or other reasons, the alien remains obligated to appear at the appointed time and date."). We choose to adopt the D.C. Circuit's holding.

In addition, we disagree with Hernandez's assertion that his failure to inquire as to the status of his motion was reasonable. Hernandez's failure to inquire was not reasonable because it is never reasonable to assume that a motion to change venue will be granted. See Maldonado-Perez, 865 F.2d at 335 (stating that a reasonable alien would inquire as to the status of a motion to change venue submitted prior to the hearing).

Furthermore, Hernandez's motion to change venue was flawed. Hernandez did travel to New York; it is reasonable to conclude that he is capable of returning. See Wijeratne, 961 F.2d at 1346-47 ("Given that [petitioner] voluntarily moved to New York from Texas shortly...