Perez v. Mukasey, 04-73029.

• Decision Date: 14 February 2008
• Docket Number: No. 04-73029.,04-73029.
• Citation: 516 F.3d 770
• Parties: Juan Antonio PEREZ, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

516 F.3d 770

Juan Antonio PEREZ, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 04-73029.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2007.

Filed February 14, 2008.

Evan L. Murri, Esq., Law Offices of Evan L. Murri, San Gabriel, CA, for the petitioner.

Peter D. Keisler, Esq., Michelle Gordon Latour, Esq., P. Michael Truman, Esq., Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A95-302-681.

Before: B. FLETCHER, STEPHEN REINHARDT, and PAMELA ANN RYMER, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge RYMER.

REINHARDT, Circuit Judge:

On March 12, 2003, Petitioner Juan Antonio Perez was ordered removed in absentia. The immigration judge ("IJ") denied his motion to reopen the immigration proceedings, a decision that was summarily affirmed by the. Board of Immigration Appeals ("BIA"). Perez argues on appeal that the agency erred in entering an in absentia removal order against him—and then denying his motion to reopen for lack of exceptional circumstances—because he did not fail to appear at his removal hearing. Although Perez was late to the hearing due to his car's mechanical failure, he arrived while the IJ was still in the courtroom. We agree that under these circumstances, the agency erred in finding that Perez failed to appear. We have jurisdiction pursuant to 8 U.S.C. § 1252 and grant the petition for review.

I. Factual and Procedural Background

Perez, a thirty-year-old native and citizen of Mexico, entered the United States without inspection on June 12, 2000. He filed an application for asylum and withholding of removal on May 13, 2002. On July 1, 2002, the former Immigration and Naturalization Service ("INS") initiated removal proceedings against him.¹ Perez was personally served with notice that he was to appear for a removal hearing scheduled for December 4, 2002 at 9:00 AM. The notice contained a warning that failure to appear at the hearing, absent "exceptional circumstances[,] could result in a removal order being entered in absentia. He appeared promptly at his scheduled hearing. At that time, Perez was served with notice of his next scheduled hearing, set for March 12, 2003 at 9:00 AM. This notice again contained a warning that failure to appear, absent "exceptional circumstances[,]" could result in a removal order being entered in absentia.

On the morning of March 12, 2003, Perez was making his way to the courthouse when his car overheated in the middle of rush hour traffic. He pulled the car off of the freeway and waited for it to cool. When he restarted it and tried to drive on the surface streets, the car overheated again. He left his car and found a bus that would get him to the courthouse. As a result of his car's mechanical failure Perez arrived at the courthouse approximately two hours after his scheduled hearing time.

When Perez entered the courtroom, around 11:00 AM, the IJ was still on the bench. Perez approached the IJ's assistant and handed her his notice of the removal hearing. At that moment, the IJ stood and left the courtroom. The assistant informed Perez that "[I]t is too late. The Judge is done for the day." The IJ issued a decision that same day ordering Perez removed in absentia.

Perez, proceeding pro se, filed a timely motion to reopen. The IJ denied the motion reasoning that Perez "failed to show that his failure to appear was due to exceptional circumstances" as required by 8 U.S.C. § 1229a(b)(5)(C). The BIA summarily affirmed the IJ's decision. Perez, now represented by counsel, seeks review of the BIA's adverse decision.

II. Standard of Review

Where, as here, the BIA uses its summary affirmance procedure, "the IJ's decision becomes the BIA's decision and we evaluate the IJ's decision as we would that of the Board." Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir.2004) (internal citation and quotation marks omitted). Although the BIA's summary affirmance "`only means that the BIA deemed any errors by the IJ to be harmless,' as a practical matter, we may review only the reasoning presented by the IJ." Reyes-Reyes v. Ashcroft, 384 F.3d 782, 786 (9th Cir.2004) (internal citations omitted).

We review the denial of a motion to reopen for abuse of discretion. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005); Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). The agency's decision is only reversed if it is "`arbitrary, irrational, or contrary to law.'" Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (quoting Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985)).

III. Discussion

The Immigration and Nationality Act ("INA") provides that an alien who fails to appear at an immigration proceeding "shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that . . . written notice was . . . provided and that the alien is removable...." 8 U.S.C. § 1229a(b)(5)(A). An in absentia removal order "may be rescinded only upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(1) of this section)." 8 U.S.C. § 1229a(b)(5)(C)(i). "Exceptional circumstances" are defined as "circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien." 8 U.S.C. § 1229a(e)(1).

Under the INA's statutory framework, then, a failure to appear is a prerequisite for the entry of an in absentia removal order. If an alien appears at his hearing, an in absentia removal order may not be entered against him and, it follows, the statute's provisions requiring an alien to demonstrate exceptional circumstances in order to reopen proceedings are inapplicable. See, e.g., Jerezano v. INS, 169 F.3d 613, 615 (9th Cir.1999); Romani v. INS, 146 F.3d 737, 738-39 (9th Cir.1998). In his briefing before this court, Perez conceded that a two-hour delay due to mechanical problems would not constitute exceptional circumstances.² Rather, Perez argues that the IJ abused his discretion in requiring Perez to demonstrate exceptional circumstances in order to reopen his proceedings because he did not, in fact, fail to appear. We agree.

In determining whether a petitioner failed to appear, we have placed particular emphasis on whether the IJ was still in the courtroom when the petitioner arrived at the courthouse. For example, in Romani, we held that petitioners did not fail to appear when they failed to enter the courtroom because their attorney's assistant erroneously told them that their case had already been decided. 146 F.3d at 739. In Jerezano, a case closely analogous to the one before us today, we held that a petitioner, who arrived fifteen to twenty minutes late to his removal hearing due to a stomach ailment that had kept him up the previous night, did not fail to appear despite his tardiness because the "IJ was still on the bench" when he arrived in the courtroom. 169 F.3d at 615 (explaining that "[w]hile an IJ need not linger in the courtroom awaiting tardy litigants, so long as he is there on other business it is an abuse of discretion to treat a slightly late appearance as a nonappearance").³ By contrast, in Valencia-Fragoso v. INS, we held that a petitioner failed to appear where she arrived four and one-half hours late and made no "showing that the. IJ was still on the bench hearing cases" when she arrived in the courtroom. 321 F.3d 1204, 1205 (9th Cir.2003).

Applying this precedent, we hold that a petitioner who arrives late for his immigration hearing, but while the IJ is still in the courtroom, has not failed to appear for that hearing. Accordingly, he is not required to demonstrate exceptional circumstances in order to reopen proceedings.⁴ In the present case, Perez arrived in the courtroom when the IJ was still on the bench. Thus, he did not fail to appear for his immigration hearing. The IJ's failure to reopen or continue his case, even in the absence of exceptional circumstances, was an abuse of discretion.⁵ See, e.g., Jerezano, 169 F.3d at 615.⁶ Because we conclude that a remand is warranted on the ground that Perez did not fail to appear, we do not address his remaining two challenges to the BIA's denial of his motion to reopen.

IV. Conclusion

For the reasons set forth above, we GRANT the petition for review and REMAND to the BIA with instructions to remand to the IJ in order to permit Perez to present his claims for asylum and withholding of removal or, in the alternative, voluntary departure.

GRANTED AND REMANDED.

RYMER, Circuit Judge, dissenting:

Juan Antonio Perez was two hours late for his immigration hearing—so late that even his lawyer had given up and gone home. Perez concedes there were no exceptional circumstances. Nevertheless, the majority holds, he did not "fail to appear" because, apparently,¹ the judge was leaving the bench but hadn't yet left the courtroom when Perez arrived. This stretches Romani v. INS, 146 F.3d 737, 739-39 (9th Cir.1998), and Jerezano v. INS, 169 F.3d 613, 615 (9th Cir.1999), to the breaking point, and stuffs Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996), into a teapot. It also creates an unworkable construct. I must, therefore, part company.

In Jerezano, we invalidated an in absentia order of deportation when the delay was short—15 or 20 minutes—and the IJ was still hearing cases when the alien arrived.² 169 F.3d at 614-15. Here, the delay was not short nor was the IJ hearing cases. In Romani, the aliens were at the courtroom on time but were erroneously told by counsel's assistant not to go in because...