In re M-S-

• Decision Date: 30 October 1998
• Docket Number: Interim Decision No. 3369.
• Citation: 22 I&N Dec. 349
• Parties: In re M-S-, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

22 I&N Dec. 349

In re M-S-, Respondent.

Interim Decision No. 3369.

Board of Immigration Appeals.

Decided October 30, 1998.

(1) Where an alien who did not receive oral warnings of the consequences of failing to appear at a deportation hearing pursuant to section 242B(a) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(a) (1994), moves to reopen deportation proceedings held in absentia under section 242B(c) of the Act in order to apply for a form of relief that was unavailable at the time of the hearing, the rescission requirements prescribed by section 242B(c)(3) of the Act are not applicable. Instead, the motion to reopen is subject to the regulatory requirements set forth at 8 C.F.R. §§ 3.2(c) and 3.23(b) (1998).

(2) Where deportation proceedings held in absentia are reopened to allow for an application for new relief, the Immigration Judge must determine in each individual case the weight to be accorded to the alien's explanation for failing to appear at the hearing and whether such explanation is a favorable or adverse factor with respect to the ultimate discretionary determination.

William J. Anastasi, Esquire, Hartford, Connecticut, for respondent.

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HOLMES, VILLAGELIU, FILPPU, ROSENBERG, and GRANT, Board Members. Concurring Opinion: GUENDELSBERGER, Board Member. Dissenting Opinion: HURWITZ, Board Member, joined by VACCA, HEILMAN, COLE, MATHON, and JONES, Board Members.

VILLAGELIU, Board Member.

The respondent appeals from the decision of an Immigration Judge dated July 1, 1996, finding that she did not satisfy the requirements for rescinding an in absentia deportation order prescribed by section 242B(c)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(c)(3) (1994)¹, and denying her motion to reopen and a request for a stay of deportation. The appeal will be sustained, and the record will be remanded for further proceedings.

I. PROCEDURAL OVERVIEW

The respondent is a native and citizen of Ghana who entered the United States on October 22, 1993, without a valid immigrant visa. She subsequently submitted an application for asylum to the Immigration and Naturalization Service. On August 16, 1995, the Service's asylum officer referred the asylum application, without approving it, to an Immigration Judge for adjudication in deportation proceedings, in accordance with 8 C.F.R. § 208.14(b)(2) (1995).

The asylum officer served the respondent with an Order to Show Cause and Notice of Hearing (Form I-221), scheduling the respondent for a January 17, 1996, deportation hearing. According to the Order to Show Cause, the warnings of the consequences of failing to appear at the deportation hearing were not read to the respondent, whose native language is Twi. See sections 242B(e)(1), (5) of the Act.

On January 17, 1996, the respondent did not appear at her deportation hearing. The Immigration Judge found the respondent deportable as charged by clear, unequivocal, and convincing evidence under section 241(a)(1)(A) of the Act, 8 U.S.C. § 1251(a)(1)(A) (1994), as an alien excludable at entry under section 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I) (1994), for not having a valid immigrant visa. An in absentia order was issued in accordance with section 242B(c)(1) of the Act, and the respondent was ordered deported to Ghana.

On December 15, 1995, the respondent married a United States citizen, who filed an immediate relative visa petition on her behalf on February 27, 1996. On March 4, 1996, the respondent filed a motion to reopen accompanied by an application for adjustment of status and supporting documentation.

The respondent's motion also addressed her failure to appear at her January 17, 1996, hearing. The respondent averred that she was told by the asylum officer that she would receive formal notice of her hearing in the mail. The respondent claimed that she did not receive this formal notice, never saw that the hearing date was indicated in the Order to Show Cause, and failed to appear because she was unaware of the scheduled hearing. The Immigration Judge denied the motion to reopen, finding that the respondent did not establish the exceptional circumstances for failing to appear at her hearing that were required to rescind the in absentia order, and that she was not prima facie eligible to adjust her status because she did not have an approved visa petition.

On May 24, 1996, the respondent's visa petition was approved.² On May 31, 1996, the respondent filed a new motion to reopen and requested a stay of deportation and a change of venue from Boston, Massachusetts, to Hartford, Connecticut. The Immigration Judge again denied this motion to reopen, finding that the respondent had not established that she had failed to appear at her deportation hearing on January 17, 1996, due to exceptional circumstances. The respondent has appealed this decision of the Immigration Judge, arguing that she is eligible for adjustment of status.

II. ISSUE PRESENTED

The issue before us is whether the exceptional circumstances requirements, prescribed by section 242B(c)(3) of the Act for rescission of an in absentia deportation order, are applicable to a motion to reopen seeking adjustment of status by an alien who did not receive the oral warnings of the consequences of failing to appear at a deportation hearing.

III. APPLICABLE STATUTES

The statutes in question are sections 242B(c)(1),(3)(A), (e)(1), and (5) of the Act, which read as follows:

(c) CONSEQUENCES OF FAILURE TO APPEAR.—

(1) IN GENERAL.—Any alien who, after written notice required under subsection (a)(2) has been provided to the alien or the alien's counsel of record, does not attend a proceeding under section 242, shall be ordered deported under section 242(b)(1) in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is deportable. The written notice by the Attorney General shall be considered sufficient for purposes of this paragraph if provided at the most recent address provided under subsection (a)(1)(F).

(3) RESCISSION OF ORDER.—Such an order may be rescinded only—

(A) upon a motion to reopen filed within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (f)(2)), or

(B) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with subsection (a)(2) or the alien demonstrates that the alien was in Federal or State custody and did not appear through no fault of the alien.

The filing of the motion to reopen described in subparagraph (A) or (B) shall stay the deportation of the alien pending disposition of the motion.

(e) LIMITATION ON DISCRETIONARY RELIEF FOR FAILURE TO APPEAR.—

(1) AT DEPORTATION PROCEEDINGS.—Any alien against whom a final order of deportation is entered in absentia under this section and who, at the time of the notice described in subsection (a)(2), was provided oral notice, either in the alien's native language or in another language the alien understands, of the time and place of the proceedings and of the consequences under this paragraph of failing, other than because of exceptional circumstances (as defined in subsection (f)(2)) to attend a proceeding under section 242, shall not be eligible for relief described in paragraph (5) for a period of 5 years after the date of the entry of the final order of deportation.

(5) RELIEF COVERED.—The relief described in this paragraph is—

(A) voluntary departure under section 242(b)(1),

(B) suspension of deportation or voluntary departure under section 244, and

(C) adjustment or change of status under section 245, 248, or 249.

IV. STATUTORY ANALYSIS

The issue before us is one of statutory construction. The object of statutory construction is to determine the congressional intent with respect to the legislation enacted. If the statutory language is clear, that is the end of the inquiry, as Immigration Judges and the Board, as well as the courts, clearly "must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). The paramount index of congressional intent is the plain meaning of the words used in the statute as a whole. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); see also Matter of Grinberg, 20 I&N Dec. 911 (BIA 1994). And, it is assumed that the legislative purpose is expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 183, 189 (1984). Moreover, in ascertaining the "plain meaning" of the statute, the Board "must look to the particular statutory language at issue, as well as the language and design of the statute as a whole." K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).

As noted above, the language of section 242B(c)(3) of the Act states that an in absentia deportation order may only be rescinded, for certain reasons, by way of a motion to reopen. However, section 242B of the Act does not indicate whether an in absentia order must always be rescinded before reopening proceedings, or whether a motion to reopen may be granted without first rescinding the deportation order where an alien is eligible for previously unavailable relief and seeks only adjudication of the new application. Instead, the language of the statute merely prescribes the procedure for rescinding an in absentia deportation order. Consequently, we start our analysis by examining the meaning of the word "rescind" to determine whether such rescission is an implied condition precedent to reopening deportation proceedings for other purposes.

According to Black's Law Dictionary, "rescission" means to annul ab initio. Black's Law Dictionary 1306 (6th ed. 1990). The dictionary explains by example that rescission of a contract...