In re W-F-

• Decision Date: 18 June 1996
• Docket Number: Interim Decision No. 3288.
• Citation: 21 I&N Dec. 503
• Parties: In re W-F-, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

21 I&N Dec. 503

In re W-F-, Respondent.

Interim Decision No. 3288.

Board of Immigration Appeals.

Decided June 18, 1996.

(1) The provisions of section 242B of the Immigration and Nationality Act, 8 U.S.C. § 1252b (1994), apply any time an alien, whose presence has not been excused by the Immigration Judge, fails to appear for a deportation hearing after proper notice has been issued pursuant to section 242B, regardless of whether the issue of deportability has already been addressed or resolved and regardless of whether the alien has someone else appear on his behalf.

(2) An Immigration Judge retains the authority to properly excuse an alien's presence at a hearing, to grant a continuance, or to change venue for good cause shown by the alien or the Immigration and Naturalization Service either prior to or at the time of the deportation hearing.

(3) If an alien's presence at a deportation hearing has not been excused, and any request for a rescheduling of the hearing has not been granted, the provisions of section 242B apply and a challenge to the entry of an in absentia deportation order based on the alien's failure to appear is governed by the "rescission" provisions of section 242B(c)(3) of the Act.

FOR RESPONDENT: Grosvenor Anschel, Esquire, Bellevue, Washington.

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

HOLMES, Board Member.

In a decision dated November 24, 1995, an Immigration Judge denied the respondent's motion to reopen his deportation proceedings based on a finding that the respondent had failed to show "exceptional circumstances" for his failure to appear at a deportation hearing held on September 23, 1994. See section 242B(c)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(c)(3) (1994). On November 28, 1995, the Immigration Judge certified his decision to this Board for review pursuant to regulations at 8 C.F.R. §§ 3.1(c), 242.8 (1995).¹ The decision of the Immigration Judge is affirmed insofar as it denied the respondent's motion to reopen the deportation proceedings.

I. BACKGROUND

The respondent is a 32-year-old native and citizen of Poland. On October 24, 1993, the Immigration and Naturalization Service issued an Order to Show Cause and Notice of Hearing (Form I-221) which charged him with deportability under section 241(a)(1)(B) of the Act, 8 U.S.C. § 1251(a)(1)(B)(Supp. V 1993). The Service alleged that the respondent entered the United States without inspection on or about March 2, 1991. On March 21, 1994, the Immigration Court issued notice that the respondent should appear for a hearing on June 23, 1994.

The respondent was absent on June 23, 1994, but an attorney appeared on his behalf. Counsel acknowledged proper service of the Order to Show Cause, conceded deportability on the respondent's behalf, and indicated the respondent's desire to have an application for relief from deportation considered. Counsel explained that the respondent was at sea working on a fishing vessel and requested a continuance of the hearing. The Immigration Judge continued the proceedings until September 23, 1994. Both written and oral notices were provided for the hearing date and the Immigration Judge expressly warned counsel that further continuances would not be granted on the basis of the respondent's employment.

The respondent failed to appear for the deportation hearing on September 23, 1994. Once again, his counsel was present. Counsel did not contest the adequacy of the notice of hearing. While no request for a continuance had been filed before the hearing date, he requested a further continuance of the proceedings because the respondent was still working. He provided a letter from the respondent's employer stating that it was "impossible" to get the respondent to disembark "at this time." The letter was dated September 22, 1994.

The Immigration Judge ultimately denied the request for a continuance. His denial was based on a consideration of the reasons for the request, on its timing, and on his previous admonitions. The Immigration Judge concluded the proceedings by entering an "Order Based on Abandonment." He found that the deportation charge had been adequately established, and that the respondent had abandoned any potential applications for relief due to his failure to appear. However, he did grant the respondent the privilege of voluntary departure under section 244(e) of the Act, 8 U.S.C. § 1254(e) (1994). He notified the respondent that any appeal would be due by October 3, 1994.

The respondent subsequently filed a timely Notice of Appeal (Form EOIR-26) before the Board. He argued that his request for a continuance should have been granted, and that it was reasonable considering the nature of his employment.

In a decision dated October 23, 1995, we found that we lacked jurisdiction over the appeal in view of the provisions of section 242B of the Act. We noted that section 242B(c)(3) of the Act provides that an order issued after a hearing held in absentia under section 242B can only be rescinded upon the filing of a motion to reopen with the Immigration Judge. See Matter of Gonzalez-Lopez, 20 I&N Dec. 644 (BIA 1993). Because the respondent had been instructed to file an appeal and because, inter alia, of the 180-day filing requirement of section 242B(c)(3)(A), we construed the appeal as a motion to reopen and returned it to the Immigration Judge for adjudication.

II. THE IMMIGRATION JUDGE'S DECISION AND CERTIFICATION

On November 24, 1995, the Immigration Judge issued his decision. He initially questioned the Board's decision to remand the case under section 242B of the Act as opposed to conducting a review on direct appeal. However, upon employing section 242B of the Act, the Immigration Judge concluded that the respondent's economic pursuits did not constitute the "exceptional circumstances" which would be necessary to excuse his failure to appear. See sections 242B(c)(3)(A), (f)(2) of the Act. In the alternative, the Immigration Judge found that the respondent did not present "good cause" for a continuance, and that his failure to appear constituted an abandonment of his application for relief from deportation.

On November 28, 1995, the Immigration Judge certified his decision to this Board. In his decision, the Immigration Judge raised the issue of whether section 242B of the Act should be applied to the respondent's case, where deportability had been resolved, the alien failed to appear for a subsequent hearing scheduled to consider applications for relief, but counsel had been present to request a continuance. The Immigration Judge in particular noted three reasons, further discussed below, weighing in favor of treating such cases as being outside the scope of section 242B of the Act. He indicated his view that Immigration Judges had reached different conclusions regarding the issues presented in this case and that the Board's guidance on this matter would be valuable. We agree with the Immigration Judge that this is a matter that requires clarification and uniform application.

Upon consideration, we find that the provisions of section 242B of the Act do apply any time an alien, whose presence has not been excused by the Immigration Judge, fails to appear for a deportation hearing after proper notice pursuant to the requirements of sections 242B(a)(2) and (c) of the Act. The provisions of section 242B(c) apply regardless of whether the issue of deportability already has been addressed or resolved and regardless of whether the alien has someone else appear on his behalf, unless the alien's attendance has been properly excused by the Immigration Judge.

III. SECTION 242B OF THE ACT

Section 242B of the Act was added by the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. See generally Matter of Gonzalez-Lopez, supra, at 645.² This section provides, inter alia, notice requirements for Orders to Show Cause and hearing notices, and it addresses the consequences of an alien's failure to appear for a scheduled deportation hearing. See generally Matter of Grijalva, 21 I&N Dec. 27, 30-31 (BIA 1995). Section 242B(c)(1) of the Act sets forth the specific conditions under which a hearing will be held in absentia. It states in pertinent part:

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. (Emphasis added.)

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).

Section 242B(c)(1) of the Act addresses the failure of an alien...