Romero-Morales v. I.N.S.

• Decision Date: 27 May 1994
• Docket Number: D,No. 1214,P,ROMERO-MORALE,1214
• Parties: Porfirioetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 93-4205.
• Court: U.S. Court of Appeals — Second Circuit

Page 125

25 F.3d 125

Porfirio ROMERO-MORALES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 1214, Docket 93-4205.

United States Court of Appeals, Second Circuit.

Argued March 9, 1994.

Decided May 27, 1994.

Sam J. Germana, Michael Capone, Cheryl J. Nichols, Law Students, (Neil H. Afran, Esq., International Human Rights Asylum Litigation Clinic, Touro Law Center, Huntington, NY, of counsel), for petitioner.

F. James Loprest, Jr., New York City, Sp. Asst. U.S. Atty. for the S.D. of N.Y. (Mary Jo White, U.S. Atty. for the S.D. of N.Y., Ping C. Moy, Asst. U.S. Atty., of counsel), for respondent.

Before: FEINBERG and MINER, Circuit Judges, and KNAPP, District Judge. ^*

FEINBERG, Circuit Judge:

Porfirio Romero-Morales petitions for review of an August 1993 decision of the Board of Immigration Appeals (BIA), affirming the denial of Romero's motion to reopen his deportation proceeding. That motion had been brought pursuant to section 242B of the Immigration and Nationality Act (the Act), codified at 8 U.S.C. Sec. 1252b. The crux of the motion was that an order of deportation had been improperly entered against Romero in absentia, pursuant to subsection (c)(1) of section 242B. The basis of the BIA's ruling was that Romero had not shown "exceptional circumstances" for his failure to appear, as required by subsection (c)(3) of section 242B. For the reasons given below, we grant the petition, vacate the BIA's order and remand the case for further proceedings.

I. Background and Prior Proceedings

Petitioner Romero, a citizen of Honduras, was apprehended in Texas shortly after entering this country illegally through Mexico in September 1992. At a hearing on October 27, 1992, at which Romero was represented by counsel, Romero conceded deportability. Immigration Judge Jeffrey Zlatow (the IJ) then granted Romero a continuance until November 16, 1992 to apply for relief from deportation, and informed Romero that failure to appear would result in the issuance of a deportation order in absentia.

On November 9, 1992, one week before the scheduled hearing, Romero was released from detention. Having no money, shelter or means of support in Texas, Romero contacted relatives in New York. They sent him money for travel to New York where they could help him financially and assist him in his deportation proceeding. Soon after Romero's arrival in New York, but only two days before the scheduled date of the adjourned hearing, he obtained new counsel.

Romero's new counsel immediately sent by express mail to the IJ in Texas a notice of appearance and Romero's motion for a change of venue to New York with his application for asylum attached. Counsel sent the papers to the INS location in Harlingen, Texas, which was one of the addresses for the office of the IJ and, in counsel's experience, the usual site for such a proceeding. However, the hearing was to be held at the Port Isabel Service Processing Center in Los Fresnos, Texas. The papers arrived at Harlingen on November 16, 1992, the day of the hearing.

For reasons that are not clear from the record, the IJ was aware that Romero's papers had been received in Harlingen. However, the IJ did not adjourn the hearing to await receipt of the papers that he knew were in the Harlingen office. Nor did the IJ allow Romero's original counsel--who appeared at the November 16 hearing--to explain that Romero's absence was not a waiver of his application for asylum or to present arguments and evidence in support of the motion for a change of venue. Instead, the IJ found that Romero had received proper notice of the hearing and had conceded deportability. Deeming Romero's failure to appear in person as a waiver of any request for relief from deportation and noting that section 242B(c)(1) thus required issuance of an in absentia deportation order, the IJ ordered Romero deported to Honduras. ¹

After further proceedings not now relevant, Romero filed a motion to reopen with the IJ in April 1993. In June 1993, the IJ denied the motion, finding that Romero had failed to show "exceptional circumstances" under Secs. 242B(c)(3) and 242B(f)(2) of the Act for his failure to appear at the November 16, 1992 hearing. ² In denying the motion to reopen, the IJ noted that Romero's change of venue motion with an application for asylum attached had been sent to the wrong address so that "the Court did not have the actual motion before it at the hearing of November 16, 1992, but the Court was aware that the motion had been submitted in Harlingen." Without considering the content of the motion papers, the IJ simply observed that "[a] motion for change of venue is no more than a motion. Submission of such a request does not excuse the Respondent from appearing at his scheduled hearing as required."

In June 1993, Romero appealed to the BIA. The BIA dismissed the appeal in August 1993, for the reasons given by the IJ. Thereafter Romero brought this petition for review pursuant to 8 U.S.C. Sec. 1105a. See also 8 U.S.C. Sec. 1252b(c)(4).

II. Discussion

Romero argues that his motion to reopen the deportation proceeding should have been granted because his decision to go to his family in New York in order to avoid poverty and homelessness in Texas during the pendency of the hearing constituted "exceptional circumstances" under section 242B. Romero further argues that the IJ deprived him of his right to counsel of his choice and due process by entering the deportation order in absentia, without giving him a reasonable opportunity to be present and without considering new counsel's notice of appearance and the change of venue motion with the application for asylum attached. The INS argues that section 242B required issuance of the in absentia deportation order, and that the motion to reopen was properly denied because Romero failed to show "exceptional circumstances" beyond his control for his failure to appear.

A. Section 242B of the Act

Section 242B was added to the Act in 1990 in part to address the failure of aliens to appear at deportation hearings. See H.R.Conf.Rep. No. 955, 101st Cong., 2d Sess. 132 (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6797; see also H.R.Rep. No. 681, 101st Cong., 2d Sess. 150-51 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6556-57; Iris Gomez, The Consequences of Nonappearance: Interpreting New Section 242B of the Immigration and Nationality Act, 30 San Diego L.Rev. 75, 85-86 (1993). Section 242B raises difficult issues of interpretation that are complicated by the fact that Congress apparently did not repeal existing provisions arguably in conflict with the requirements of section 242B. See id. at 146-51.

For example, section 242B(c)(1), see note 1 above, requires the IJ to issue a deportation order in absentia against any alien who fails to appear at a scheduled hearing so long as the INS establishes deportability and proper notice by "clear, unequivocal, and convincing evidence." Section 242B(c)(3), see note 2 above, provides for reopening such proceedings only on a showing of "exceptional circumstances." In contrast, the Act prior to the 1990 amendments provided that "[i]f any alien has been given a reasonable opportunity to be present at a [deportation proceeding], and without reasonable cause fails or refuses to attend or remain in attendance at such proceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present." 8 U.S.C. Sec. 1252(b) (emphasis added). The 1990 amendments, which added section 242B, apparently did not repeal this section. It is unclear what Congress intended by adding the mandatory language combined with the "exceptional circumstances" standard for reopening under section 242B, while leaving intact the permissive language and less stringent "reasonable cause" standard for avoiding in absentia deportation under Sec. 1252(b).

Romero argues that deportation orders should be issued in absentia only against aliens who obstruct the process. Romero invokes the legislative history of both the 1990 amendments and the original 1952 Act to support the view that in absentia deportation orders were conceived of as a means of dealing with obstructionist tactics. See H.R.Rep. No. 1365, 82d Cong., 2d Sess. 57, reprinted in 1952 U.S.C.C.A.N. 1653, 1712-13; see also H.R.Rep. No. 681 at 150-51, 1990 U.S.C.C.A.N. at 6556-57 (noting "that willful and unjustifiable failure to attend deportation hearings that have been properly noticed is intolerable.... [F]ailure to appear at such hearing without good cause will result in the entry of an in absentia deportation order...."). Romero reconciles section 242B with the preexisting provisions by assuming that Congress intended a dual standard under which only aliens who obstruct the process are subject to in absentia deportation and the stringent "exceptional circumstances" standard to reopen, while the "reasonable cause" standard continues to apply to aliens who have not demonstrated obstructionist behavior. See Maldonado-Perez v. INS, 865 F.2d 328, 339-40 (D.C.Cir.1989) (Wald, C.J., dissenting). Romero also argues that the "exceptional circumstances" standard is ambiguous, and that the legislative history of the 1990 Act does not evince an intent to establish a harsh standard. See H.R.Rep. No. 955 at 132, 1990 U.S.C.C.A.N. at 6797 (noting the conference committee's "expect[ation] that in determining whether an alien's failure to appear was justifiable the Attorney General will look at the totality of the circumstances to determine whether the alien could not reasonably have been expected to appear").

In response, the INS argues that the legislative history of the 1952 Act is irrelevant, and that the unambiguous "exceptional circumstances" standard is not limited to any subclass of aliens. The INS further argues that since Romero's decision to leave Texas was not beyond his control, he failed to allege "exceptional circumstances" for his failure to appear.

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