Matter of Haim

• Decision Date: 11 April 1988
• Docket Number: Interim Decision Number 3060,A-28593629.
• Citation: 19 I&N Dec. 641
• Parties: MATTER OF HAIM. In Exclusion Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

19 I&N Dec. 641

MATTER OF HAIM.

In Exclusion Proceedings.

Interim Decision Number 3060

A-28593629.

Board of Immigration Appeals.

Decided by Board April 11, 1988.

(1) Where an immigration judge conducts an exclusion or deportation hearing in absentia, an alien can move to have the immigration judge reopen the proceedings when the cause of the alien's failure to appear relates to facts not before the immigration judge at the time of his decision.

(2) When the basis for a motion to reopen is that the immigration judge held an in absentia hearing, the alien must establish that he had "reasonable cause" for his absence from the proceedings.

(3) A party seeking to reopen the proceedings must state the new facts which he intends to establish, supported by affidavits or other evidentiary material.

(4) A motion to reopen proceedings will be granted if the alien had reasonable cause for his failure to appear.

EXCLUSION: Act of 1952 — Sec. 212(a)(20) [8 U.S.C. § 1182(a)(20)] — No valid immigrant visa.

ON BEHALF OF APPLICANT: Jose R. Capiro, Esquire 1430 S.W. First Street, Suite 15 Miami, Florida 33135

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members.

In a decision dated December 2, 1987, an immigration judge ordered the applicant excluded and deported from the United States. The applicant has appealed. The appeal will be dismissed.

The record reflects that exclusion proceedings were instituted on April 1, 1987, and notice was sent to the applicant on October 15, 1987, informing her that the exclusion hearing was scheduled for 9:00 a.m. on November 12, 1987, at the Office of the Immigration Judge, 7880 Biscayne Boulevard, 8th Floor, Miami, Florida. The applicant did not appear for the hearing on November 12, 1987, and the immigration judge proceeded with the hearing in absentia, found that she had failed to establish her admissibility, and ordered her excluded and deported from the United States.

On her Notice of Appeal (Form I-290A), the applicant contends that the immigration judge abused his discretion when he found that she failed to establish admissibility by the "mere" reason that she did not appear before the immigration judge. The applicant contends that she should have been given an opportunity to explain why she was not present at the hearing. The applicant requests that her case be remanded to the immigration judge for a new hearing in which she would be given an opportunity to explain why she was absent from the exclusion proceedings. It is not alleged that the appeal is based on facts that were a matter of record at the time of the immigration judge's decision.¹

The applicant's complaint that she should have been given an opportunity to explain why she was not present for the exclusion hearing is unfounded. Aliens in either exclusion or deportation proceedings do have such opportunities. Where an immigration judge conducts an exclusion or deportation hearing in absentia, an alien can move to have the immigration judge reopen the proceedings when the cause of the alien's failure to appear relates to facts not before the immigration judge at the time of his decision.

A party seeking to reopen exclusion...