In re Grijalva-Barrera, Interim Decision No. 3284.
| Citation | 21 I&N Dec. 472 |
| Decision Date | 14 June 1996 |
| Docket Number | File A14 205 803.,Interim Decision No. 3284. |
| Parties | In re Gustavo Alonzo GRIJALVA-Barrera, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated April 2, 1993, an Immigration Judge denied the respondent's motion to reopen the deportation proceedings. The respondent has appealed that decision. The appeal will be sustained, and the record will be remanded to the Immigration Judge for further proceedings.
The respondent is a native and citizen of Mexico who entered the United States as a lawful permanent resident on January 20, 1964. On April 2, 1991, the Immigration and Naturalization Service issued an Order to Show Cause charging the respondent with deportability under section 241(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B)(i) (Supp. III 1991), as an alien convicted of a controlled substance violation. The respondent was scheduled to appear for a hearing before an Immigration Judge on March 1, 1993, for consideration of his previously filed application for relief from deportation. At that time, he failed to appear. Because no reason was evident for the respondent's absence, the Immigration Judge conducted the hearing in absentia pursuant to section 242B of the Act, 8 U.S.C. § 1252b (Supp. V 1993), found the respondent deportable as charged, determined that he had abandoned any potential applications for relief, and ordered him deported from the United States.
On March 15, 1993, the respondent, through counsel, filed a motion to reopen before the Immigration Judge. See generally Matter of Gonzalez-Lopez, 20 I&N Dec. 644 (BIA 1993). The respondent argued that his motion should be granted because his failure to appear was due to the misdirection of his counsel, who was unable to attend the hearing. The Immigration Judge denied the motion to reopen on April 2, 1993, remarking that respondent's counsel had "engaged in tactics of delay which could only be characterized as contumacious."
On appeal, the respondent, through new counsel, argues that the proceedings should be reopened and the record remanded to the Immigration Judge based upon the ineffective assistance of his former counsel.1 According to the respondent, on the morning of the scheduled hearing, an employee of his prior attorney called to inform him that there had been a continuance and that he should not appear at the Immigration Court. The respondent later learned that the hearing had been conducted in absentia, that his application for relief had been deemed abandoned, and that he had been ordered deported. In support of his appeal, the respondent has submitted evidence that he filed a complaint against his former counsel with the State Bar of Arizona, and that he informed counsel of the allegations made against him. The respondent also has included an affidavit from his former counsel which corroborates the respondent's account of events.
An order issued following proceedings conducted in absentia pursuant to section 242B(c) of the Act may be rescinded only upon a motion to reopen which demonstrates that the alien failed to appear owing to exceptional circumstances, because he did not receive proper notice of the hearing, or because he was in Federal or State custody and failed to appear through no fault of his own. Section 242B(c)(3) of the Act; see also Matter of Gonzalez-Lopez, supra. The term "exceptional circumstances" refers to exceptional circumstances beyond the control of the alien, such as serious illness of the alien or death of an immediate relative, but not including less compelling circumstances. Section 242B(f)(2) of the Act.2
Upon review of the record, we find that the respondent has established sufficient grounds for reopening...
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