De Jimenez v. Ashcroft

• Decision Date: 07 June 2004
• Docket Number: No. 03-1122.,03-1122.
• Citation: 370 F.3d 783
• Parties: Teresa Gonzalez DE JIMENEZ, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

370 F.3d 783

Teresa Gonzalez DE JIMENEZ, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent.

No. 03-1122.

United States Court of Appeals, Eighth Circuit.

Submitted: December 18, 2003.

Filed: June 7, 2004.

Peter J. Antosh, argued, Dodge City, KS (Jesse B. Garcia, Wichita, KS, on the brief), for appellant.

Janice K. Redfern, Dept. of Justice, argued, Washington, D.C., for appellee.

Before MELLOY, McMILLIAN and BOWMAN, Circuit Judges.

MCMILLIAN, Circuit Judge.

This matter arises out of exclusion proceedings before an immigration judge which resulted in an in abstentia order finding Teresa Gonzalez de Jimenez (petitioner) subject to exclusion and deportation following her failure to appear at a hearing. She now petitions this court for review of an order of the Board of Immigration Appeals (BIA) denying her motion to reconsider its earlier denial of her motion to reopen the case. Petitioner maintains that the BIA abused its discretion in denying her the opportunity to establish reasonable cause for her failure to appear at the hearing. She argues, among other things, that the BIA misapplied its own precedent and erroneously disregarded evidence she had presented. For the reasons stated below, we grant the petition for review and remand the case to the BIA with instructions.

Petitioner, a citizen of Mexico, became a lawful permanent resident in the United States when she married a naturalized citizen in 1984. She has two children from the marriage. In 1986, her husband moved to Texas to receive medical treatment. Since then, petitioner alone has raised the children. She owns a home in Wichita, Kansas, where she has worked as a janitor for the City of Wichita for over fourteen years.

On January 19, 1997, the Immigration and Naturalization Service (INS) commenced exclusion proceedings against petitioner on the charge that she had knowingly assisted an alien attempting to enter the United States illegally. Petitioner was ordered to appear at an exclusion hearing in San Antonio, Texas, on June 3, 1997. Petitioner appeared at that hearing as ordered. At the hearing, petitioner admitted under oath that she had attempted to help her son's girlfriend enter the United States illegally. Although there was no dispute that she had violated the law, the immigration judge in San Antonio continued the hearing to afford petitioner an opportunity to apply for a discretionary waiver of deportation under 8 U.S.C. § 1182(c) (1994).¹ See Administrative Record (A.R.) at 202-03 (Transcript of Hearing). Petitioner requested that the rescheduled hearing take place in Kansas City, Missouri, closer to her home, and the immigration judge granted the request.

The rescheduled hearing was set for August 18, 1998, at 9:00 a.m., to be held before an immigration judge located in Chicago, Illinois. To accommodate petitioner's venue request, the hearing was to be conducted telephonically. Petitioner and the government attorney were duly notified to appear at the INS District Office in Kansas City, Missouri.

On the morning of August 18, 1998, the government attorney timely appeared at the INS office in Kansas City, but petitioner did not. On the government's motion, the immigration judge issued an exclusion order against petitioner in absentia. Petitioner did not call the INS office or the immigration court on the date of the hearing to explain her failure to appear.

Nine days later, on August 27, 1998, the INS office in Kansas City received by certified mail a letter from petitioner addressed to the "Immigration Judge," dated August 19, 1998. In her letter, petitioner acknowledged her failure to appear at the INS office for her hearing and asked for reconsideration. She explained that, on the morning of the hearing, she was "unable to locate the address on time" and that one of her sons had become ill due to the lack of air conditioning in her car. She also enclosed documents that she had intended to present at the hearing to support her request for a waiver of deportation. The INS office in Kansas City forwarded petitioner's letter and enclosed documents to the immigration judge in Chicago. See A.R. at 176-84.

Around the same time, petitioner received in the mail the immigration judge's in abstentia order stating that she was to be deported from the United States. At the bottom of the order, the immigration judge had written by hand: "Applicant has 30 days to file Appeal to Board of Immigration Appeals." A.R. at 185 (in abstentia order). Included with the order was a form cover sheet signed by the clerk of the immigration court. On that cover sheet, the following instructions were clearly checked off:

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST MUST BE MAILED TO:

                  BOARD OF IMMIGRATION APPEALS
                  OFFICE OF THE CLERK
                  P.O. BOX 8530
                  FALLS CHURCH, VA 22041
                

A.R. at 175 (cover sheet). Printed on the same cover sheet were the following alternative instructions, which were not checked off:

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6), 8 U.S.C. SECTION 1229A(c)(6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

                  IMMIGRATION COURT
                  55 EAST MONROE ST., SUITE 1900
                  CHICAGO, IL 60603
                

Id.

Petitioner timely filed an appeal with the BIA as instructed. Her appeal was pro se. In a handwritten letter, she explained that she could not afford an attorney. She further asserted that she had missed the August 18th hearing "because of a sick child and trouble locating the building," and she asked the BIA to give her a "second chance." A.R. at 158 (pro se appeal).

Three years later, on March 20, 2002, the BIA dismissed petitioner's appeal. A.R. at 147-48 (In re: Teresa Gonzalez de Jimenez, File No. A38 946 672 (BIA Mar. 20, 2002)). In dismissing petitioner's administrative appeal, the BIA explained:

[A]n in abstentia order is proper in exclusion proceedings if the alien has been given an opportunity to be present and without reasonable cause fails or refuses to attend or remain in attendance. Where an alien later establishes that he or she had reasonable cause for the failure to appear, the Immigration Judge's order may be vacated and proceedings may be reopened, or the alien may appeal the adverse decision directly to the Board, as the alien has done in the case before us. In exclusion proceedings, the "reasonable cause" standard will be applied.

An alien has an obligation to appear in Immigration Court at the time and date indicated on a Notice of Hearing. Normally, a valid excuse for an alien's absence will be reasonable under the circumstances of the case and will be substantiated by evidentiary material or an affidavit. The applicant has submitted no affidavit or other evidence to support her claim of her child being sick or being unable to locate the building.

We conclude that the applicant's reasons for her failure to appear do not constitute reasonable cause. General assertions, without more, do not constitute reasonable cause that would warrant remand of an in abstentia exclusion proceeding. Claims of an ill child without corroborative evidence, or mere good intentions toward her family, are insufficient for satisfying the reasonable cause standard. The applicant failed to explain why she had been unable to locate the building and did nothing to alert the Immigration Court of the problem. The applicant could have ensured her appearance by taking steps earlier to familiarize herself with the location of the Immigration Court or else find someone to accompany her who had knowledge of the area and traffic conditions. The applicant's stated reasons for failing to appear do not satisfy the definition of reasonable cause.

Id. (internal citations omitted).

After receiving the BIA's order dismissing her appeal, petitioner hired an attorney. On June 18, 2002, through her attorney, petitioner filed a motion to reopen along with numerous supporting documents, including her own sworn affidavit which explained in detail the events surrounding her failure to appear at the hearing on August 18, 1998. In her affidavit, petitioner stated, among other things, that, on the morning of the hearing, she left her home at 4:00 a.m., allowing herself four hours to reach Kansas City and one hour to find the INS District Office. She had not obtained exact directions to the INS office prior to her trip because she thought she could successfully ask for directions upon arriving in the city. With her were her two minor sons, then ages 10 and 15. At approximately 8:00 a.m., petitioner reached Kansas City, where she encountered heavy traffic. She stopped in the downtown area and asked several people for directions to the INS office, but no one could help her. She proceeded to another area of town and again asked for directions. A man incorrectly told her that the INS office was in Liberty, Missouri, and directed her out of the city, where she became lost on the highway. She continued driving, hoping that she would be able to find the INS office. It was hot, and the air conditioning in her car was broken. Her younger son became ill and vomited in the car. At approximately 10:30 a.m., petitioner gave up and returned home. The next day she wrote the letter to the immigration judge apologizing for her absence. See A.R. at 92-93 (Affidavit of Teresa Jimenez).

On September 17, 2002, the BIA denied petitioner's motion to reopen. A.R...