In re J-P-

• Decision Date: 20 May 1998
• Docket Number: Interim Decision No. 3348.
• Citation: 22 I&N Dec. 33
• Parties: In re J-P-, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

22 I&N Dec. 33

In re J-P-, Respondent.

Interim Decision No. 3348.

Board of Immigration Appeals.

Decided May 20, 1998.

An alien failed to establish that a serious headache he suffered on the day of his deportation hearing amounted to exceptional circumstances to excuse his failure to appear within the meaning of section 242B(f)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(f)(2)(1994), where he gave no explanation for neglecting to contact the Immigration Court on the day of the hearing and did not support his claim with medical records or other evidence, such as affidavits by persons with knowledge regarding the extent and seriousness of the alien's headache and the remedies he used to treat it.

Pro se.

Edward S. Reisman, Assistant District Counsel, for the Immigration and Naturalization Service.

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, GUENDELS-BERGER, and JONES, Board Members. Dissenting Opinion: ROSENBERG, Board Member.

HURWITZ, Board Member.

In a decision dated January 6, 1997, the Immigration Judge denied the respondent's motion to reopen his deportation proceedings conducted in absentia on July 29, 1996, pursuant to section 242B of the Immigration and Nationality Act, 8 U.S.C. § 1252b (1994). The respondent appeals from the Immigration Judge's decision. The appeal will be dismissed.

The issue before us is whether the respondent has established that exceptional circumstances, namely a strong headache, caused his failure to appear at his deportation hearing.

In support of his motion to reopen, the respondent submitted a signed declaration stating that on July 28, 1996, 1 day before his missed hearing, he developed strong pain in his head. According to his statement, the pain caused him to be bedridden for 2 days. Thus, he was unable to attend his hearing.

In his January 6, 1997, decision, the Immigration Judge found that the respondent failed to establish that exceptional circumstances caused his failure to appear because he did not submit a doctor's note, or a hospital or medical record in support of his motion. In response to the Immigration Judge's finding, the respondent argues on appeal that he did not submit such documentation because he was unable to afford professional medical treatment. He indicates that he treated his headache with home remedies.

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 because of 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 Sharma v. INS, 89 F.3d 545 (9th Cir. 1996); Matter of Gonzalez-Lopez, 20 I&N Dec. 644 (BIA 1993). 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.

We find that the respondent has failed to establish that exceptional circumstances caused his failure to appear at his deportation hearing. Id. Generally, a common headache would not rise to the level of a serious illness and thus would not constitute exceptional circumstances within the meaning of the Act. Assuming that a serious headache can amount to exceptional circumstances, the respondent has failed to bring forth sufficient evidence to demonstrate that his headache falls into this category. The signed statement the respondent submitted in support of his motion to reopen only contains the following description regarding his headache: "On July 28, 1996, I developed a strong pain in my head and cranium, that caused [me] to remain in bed for the next two days."

This perfunctory statement contains no detail regarding the cause, severity, or treatment of the alleged illness. Such a conclusory statement is insufficient to meet the high standard established by Congress for a showing of exceptional circumstances. See section 242B(f)(2) of the Act.

The respondent also failed to establish his burden of proving exceptional circumstances because his motion to reopen was unsupported by medical or other records. As discussed above, the Immigration Judge found that the respondent's failure to submit medical records in support of his motion was, in itself, dispositive of his claim. We are not prepared to reach this conclusion based on the evidence of record, including the respondent's assertion on appeal that he treated his headache with home remedies because he could not afford medical treatment. However, we do find the lack of medical evidence or other evidence establishing, in detail, the seriousness of the respondent's illness to be one of several factors leading to our finding that the respondent failed to meet his burden. We find that if the respondent, indeed, treated his headache with home remedies, he could have supported his motion with an affidavit or another form of evidence from a medical professional describing the specific home remedies he used and their effectiveness in treating headaches. A medical professional might also have commented, in detail, on the severity of the illness alleged. In the alternative, his claim may have been substantiated, through detailed affidavits from the respondent, roommates, friends, and co-workers, attesting to the extent of his disability and the remedies used. None of these possible forms of evidence are in this record.

We find that the respondent's bare statement that he could not afford medical care does not excuse his failure to provide medical evidence to support his claim of exceptional circumstances. In particular, there is no evidence in the record that free or low cost emergency medical care was unavailable to the respondent in his area of residence at the time of his scheduled hearing.

Moreover, the record does not contain any evidence that the respondent was employed at the time of his scheduled hearing. While we cannot consider work absence in the context of the current case, we find that any evidence of absence from work due to an illness would normally bolster a respondent's claim that the illness is serious and that it constitutes exceptional circumstances.

We also find that the respondent's failure to contact the Immigration Court on the day of his hearing further undercuts his claim. See De Morales v. INS, 116 F.3d 145 (5th Cir. 1997). In De Morales the petitioners alleged that they missed their deportation hearing due to automobile failure. They stated that on the day of their missed hearing they tried to locate the telephone number of the San Antonio Immigration Court but were unable to find it, either in the San Antonio telephone directory or in their Notice of Hearing. Thus, they failed to contact the Immigration Court on the day of their deportation hearing to inform the Immigration Judge of their inability to attend their hearing and to explain the reason for their absence. The United States Court of Appeals for the Fifth Circuit found that the petitioners failed to "make adequate efforts to avoid entrance of the in absentia order" through their "cursory search for the phone number." Id. at 149.¹ The respondent did not indicate that he made any effort to contact the Immigration Court on the day of his deportation hearing to alert the Immigration Judge of his absence and to explain the reasons for it. Giving such notice of one's unavailability is a minimal and logical step that, if not taken, is a factor which tends to undermine a claim of exceptional circumstances

We do not discount the fact that the respondent had 180 days from the time of his missed hearing to seek reopening based on exceptional circumstances. See section 242B(c)(3)(A) of the Act. However, his failure to contact the Immigration Court on the day of his hearing, either personally or otherwise, coupled with his failure to explain his reasons for neglecting to do so, demonstrates that the respondent lacked sufficient diligence in avoiding an in absentia deportation order. Although diligence is not a statutory requirement, we find that this lack of diligence is a factor that undercuts the respondent's claim, given the totality of the record before us, including the lack of medical or other evidence to support his claim of exceptional circumstances. See H.R. Conf. Rep. No. 101-955, at 119, 132 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6797 (instructing the Attorney General to look at the totality of the circumstances to determine whether an alien's failure to appear was justifiable),

For the foregoing reasons, we find that the respondent has failed to meet his burden of establishing that exceptional circumstances caused his failure to appear at his deportation hearing.² Thus, he does not merit reopening. Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

Board Members Edward R. Grant and Lori L. Scialabba did not participate in the decision in this case.

DISSENTING OPINION: Lory D. Rosenberg, Board Member.

I respectfully dissent.

The issue before the Board is not whether a "strong headache," debilitating the respondent and causing him to be bedridden for 2 days, is sufficient to establish "exceptional circumstances" under section 242B of the Immigration and Nationality Act, 8 U.S.C. § 1252b (1994), so that the order of deportation against him may be rescinded and he may have the benefit of having a hearing on the charges against him and an opportunity to seek relief from deportation from the United States.

The issue is whether, according to the test announced by the majority, this unrepresented respondent has met his evidentiary burden of proving "exceptional circumstances" by submitting a personally...