In re S-a-, Interim Decision No. 3331.

• Decision Date: 25 November 1997
• Docket Number: Interim Decision No. 3331.
• Parties: In re S-A-, Applicant.
• Court: U.S. DOJ Board of Immigration Appeals

21 I&N Dec. 1050

In re S-A-, Applicant.

Interim Decision No. 3331.

Board of Immigration Appeals.

Decided November 25, 1997.

An applicant's general assertion that he was prevented from reaching his hearing on time by heavy traffic does not constitute reasonable cause that would warrant reopening of his in absentia exclusion proceedings.

FOR THE APPLICANT: Candace L. Jean, Esquire.

BEFORE: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, and GUENDELSBERGER, Board Members. Dissenting Opinions: SCHMIDT, Chairman; ROSENBERG, Board Member.

HURWITZ, Board Member.

In a decision dated December 5, 1995, the Immigration Judge found the applicant excludable as charged and ordered him excluded and deported from the United States. The decision was rendered following a hearing held in absentia due to the applicant's failure to appear. The applicant filed two motions to reopen with the Immigration Judge, both of which were denied. The applicant appeals from the denial of his second motion to reopen on August 26, 1996. The appeal will be dismissed.

It is well established that an alien must show reasonable cause for his absence in order for exclusion proceedings to be reopened after a hearing is held in absentia. See Matter of Ruiz, 20 I&N Dec. 91 (BIA 1989); Matter of Haim, 19 I&N Dec. 641 (BIA 1988). In his first motion to reopen, the applicant asserted that he was late to his hearing because of heavy traffic between Fort Myer, Florida, where he lives, and the hearing location in Miami. The Immigration Judge found that the applicant's claim of traffic problems did not amount to reasonable cause.¹

In his second motion to reopen, the applicant stated that he never received notice of his December 5, 1995, hearing. In his August 26, 1996, decision the Immigration Judge noted that he had previously found no reasonable cause for the applicant's absence on the basis of heavy traffic. The Immigration Judge stated that the applicant had proffered an inconsistent, alternative basis for his second motion to reopen, which was also factually incorrect because the applicant had received notice of the hearing. On appeal, the applicant relies only on the traffic situation raised in his first motion to excuse his absence. He explains that the second motion to reopen was prepared by a notary and did not contain accurate information.

The applicant has provided an affidavit dated September 19, 1996, in which he states: "[T]he traffic was very bad that morning, and I arrived at Immigration Court shortly after 9:00 a.m." According to the applicant's first motion to reopen, he arrived at the Immigration Court approximately 20 minutes late. However, his hearing was set for 8:30 a.m.; thus, the applicant's arrival at the Immigration Court appears to have been more than 30 minutes late.

The applicant's affidavit contains the general assertion that traffic prevented him from reaching his hearing on time. There is no detail that would enable us to meaningfully evaluate his claim. He did not provide a time of departure to indicate how much time he allocated for travel to the Immigration Court. There is no information as to the location of the heavy traffic or any reason for the apparently unexpected level of traffic. The applicant did not state what efforts he made upon reaching the Immigration Court to alert court personnel that he had arrived and was available for his hearing. See Thomas v. INS, 976 F.2d 786 (1st Cir. 1992) (finding that the reasonable cause standard was not satisfied when the alien appeared late for the hearing because the alien and his attorney "crossed signals" about where to meet).

The applicant's credibility is in doubt. He has filed two motions with inconsistent reasons for his absence, for which he has not presented a persuasive, corroborated reason. He has misstated the time of arrival at the Immigration Court. He has not provided any evidence or facts beyond his statement that traffic was heavy. He did not claim to have attempted to alert anyone at the Immigration Court as to his predicament upon his arrival. Under these circumstances, we are satisfied that the Immigration Judge correctly determined that the applicant failed to establish reasonable cause for his absence from the hearing. Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

1. The Immigration Judge also found in his January 18, 1996, decision that heavy traffic did not constitute exceptional circumstances, which would be required to reopen an in absentia deportation hearing. See Matter of Grijalva, 21 I&N Dec. 27 (BIA 1996). The applicant was not required to show exceptional circumstances to reopen his exclusion proceedings. However, this finding by the Immigration Judge is harmless error because he also found no reasonable cause.

DISSENTING OPINION: Paul W. Schmidt, Chairman

I respectfully dissent.

On appeal from the denial of his motion to reopen in absentia exclusion proceedings, the applicant has submitted an affidavit stating that the information furnished in support of his earlier motion to reopen on notice grounds was not authorized by him. I would not reject this contention and find the applicant, in effect, incredible by reason of inconsistent statements without giving him an opportunity for an evidentiary hearing on the truth of his contention that he did not authorize the inconsistent representations contained in his earlier motion. Cf. Arrieta v. INS, 117 F.3d 429 (9th Cir. 1997) (finding remand appropriate to give the respondent an opportunity to provide evidentiary support for statements made in an affidavit accompanying a motion to reopen).

In his first motion to reopen and on appeal, the applicant, who lives a distance of several hours from the Immigration Court, claims that he was 20-30 minutes late for his hearing because of traffic congestion. If this were in fact the case, the interests of justice and the statutory purpose of providing fair hearings to aliens before removing them from the United States would have been better served by the Immigration Judge exercising his available discretion to hear the case at another time during the day. See Romano-Morales v. INS, 25 F.3d 125 (2d Cir. 1994)(stating that rules regarding in absentia hearings should be carefully applied to avoid conflict with statutory or constitutional rights); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996) (stating that notwithstanding rules governing in absentia hearings, an Immigration Judge retains authority to excuse presence, grant a continuance, or change venue). I am not necessarily convinced that every incidence of tardiness must be treated as an "absence" from the hearing.

I therefore dissent from the decision to dismiss the applicant's appeal.

DISSENTING OPINION: Lory D. Rosenberg, Board Member

I respectfully dissent.

The Immigration Judge and this Board should be conducting hearings, not curtailing them. Although appearance at scheduled hearings and reduction of a crowded docket are desirable from an administrative and a public policy perspective, the way to achieve such a goal is not by denying an applicant, charged with being excludable from the United States, the hearing that is contemplated by the statute, when he comes forward with a reasonable explanation for appearing late for a scheduled hearing. See section 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226 (1994); see also section 242(b) of the Act, 8 U.S.C. § 1252(b) (1994) (addressing the equivalent to due process rights of notice and an opportunity to be heard in the deportation context); 8 C.F.R. § 236.2 (1997) (addressing the equivalent to due process rights of notice and an opportunity to be heard in the exclusion hearing context).

The contradiction between the protected right to a hearing and an increased interest in "expediting" such proceedings is particularly clear, where, as here, the subject of the hearing has not absconded or disappeared, but comes before us, virtually imploring us to provide him with such a hearing. Although a hearing is not barred by any statutory standard, the majority denies the applicant a hearing on grounds reliant on an exclusively administrative interpretation of what constitutes a failure to appear and reasonable cause for such a failure to appear. Such a denial is not only arguably abusive of our discretion, but factually contrary to standards we have pronounced in our precedents.

I. THE "REASONABLE CAUSE" STANDARD AND LATE ARRIVAL

This is not a case in which the applicant literally failed to appear for his hearing. It is a case in which the applicant appeared, but appeared late. The applicant, who came to court in Miami from his residence in Ft. Myers, literally across the southern part of the state of Florida, contends he arrived "shortly after 9 a.m." as the result of "bad traffic." He also stated that he arrived approximately 20 minutes late.

Aha! So says the majority, computing the mathematics. The hearing was at 8:30; thus, by admitting he arrived shortly after 9:00 a.m, the applicant conceded that he was not 20 minutes late, but at least 30 minutes late.

In Matter of Ruiz, 20 I&N Dec. 91 (BIA 1989), cited by the majority, we held that when the basis for a motion to reopen is that an Immigration Judge held an in absentia hearing, "the alien must establish that he has reasonable cause for his absence from the proceedings. Section 242(b) of the Act, 8 U.S.C. § 1252(b) (1982) (deportation proceedings). If the alien has reasonable cause for his failure to appear, the motion will be granted ...." Id. at 92-93 (emphasis added) (citations omitted); see also Matter of Haim, 19 I&N Dec. 641 (BIA 1988).

The standard of "reasonable cause" applicable in exclusion proceedings is derived from section 242(b) of the Act, which sets forth statutory standards of fundamental fairness to be observed in deportation proceedings. This standard is distinct, and far...