Singh v. I.N.S.

• Decision Date: 12 July 2002
• Docket Number: No. 01-71043.,01-71043.
• Parties: Ranjit SINGH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICES, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

295 F.3d 1037

Ranjit SINGH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICES, Respondent.

No. 01-71043.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 2002.

Filed July 12, 2002.

Martin Resendez Guajardo, Law Office of Martin Resendez Guajardo, San Francisco, CA, for petitioner.

Barry J. Pettinato and Anthony C. Payne, Office of Immigration Litigation Civil Division, United States Department of Justice, Washington, DC, for respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A72-669-621.

Before SCHROEDER, Chief Judge, D.W. NELSON and REINHARDT, Circuit Judges.

OPINION

SCHROEDER, Chief Judge.

This is a highly unusual case. The appellant, Ranjit Singh, a native and citizen of India, unlawfully entered the United States in July 1990. He has diligently pursued his efforts to obtain lawful permanent residence status on the basis of his marriage. He appeared for five deportation hearings between October 1995 and October 1997, which were all continued. Several other hearings were continued upon his request until his wife could obtain citizenship. Finally, after his wife had become a naturalized United States citizen, and he became facially eligible for the status adjustment, he drove several hours with his wife and newborn baby to attend a deportation hearing on January 21, 1998 at 1:00 p.m., only to discover that the hearing had been scheduled for 11:00 a.m. and that he had been ordered deported in absentia.

On the record before us, it appears Singh is eligible for adjustment of status as the spouse of a U.S. citizen and the beneficiary of an immediate relative immigrant petition approved by the INS. 8 U.S.C. § 1255(a) (2002). Indeed, the INS commendably conceded at oral argument that apart from a few formalities that needed to be carried out, if the hearing had been held, Singh would not have been ordered deported.

The IJ, however, denied Singh's motion to reopen and rescind the deportation order. The BIA denied his appeal with a conclusory statement that there were not exceptional circumstances as required by 8 U.S.C. § 1252b(c)(3)(A) (1994).¹ He appeals the BIA's decision claiming that his is the exceptional case, and we agree.

We review the BIA's decision for abuse of discretion. Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). We will reverse the BIA's denial of a motion to reopen if it is "arbitrary, irrational, or contrary to law." Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985). A petitioner is entitled to recission of a deportation order issued in absentia by filing a motion to reopen within 180 days of the date of the order of removal and by demonstrating that "exceptional circumstances" were the cause of the failure to appear. 8 U.S.C. § 1252b(c)(3)(A) (1994). "Exceptional circumstances" is defined by statute as "exceptional circumstances (such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien." 8 U.S.C. § 1252b(f)(2) (1994).

The INS contends that failing to attend a hearing on a claim of mistake is not an exceptional circumstance because it happens frequently. Both of the cases on which it relies, and where we held exceptional circumstances did not exist, were cases in which the petitioners were not, as Singh is, the beneficiary of an approved visa petition. Those petitioners were merely seeking to delay the inevitable. See Singh-Bhathal v. INS, 170 F.3d 943, 944 (9th Cir.1999); Sharma, 89 F.3d at 546.

In Singh-Bhathal, the petitioner was taken into INS custody after entering the United States illegally. 170 F.3d at 944. He was released on bail and was sent a notice that he was to appear at a deportation hearing. He did not appear and was ordered deported in absentia. Id. He then filed an application for asylum under an alias at an INS office in another city. Id. We affirmed the BIA's dismissal of his appeal because he had not filed a timely motion to reopen and because we found that he had made a voluntary choice not to appear. Singh Bhathal had every reason not to appear for his hearing, since he lacked a plausible claim to avoid deportation.

We affirmed the BIA's dismissal of the petitioners' appeal in Sharma, when the petitioners were 45 minutes to one hour late for their deportation hearing due to traffic congestion and parking difficulties, because we agreed that the petitioners had not established exceptional circumstances. 89 F.3d at 546. The petitioners' only possibility of relief from deportation in that case was a discretionary grant of asylum. The IJ had previously warned the hearing would proceed in absentia if they did not appear, and this court stressed the importance of the government's interest "in preserving incentives to discourage delays in requests for relief." Id. at 547-48.

Cases from other circuits relied upon by the INS also involved petitioners who failed to appear for a hearing where they faced adverse actions. In de Morales v. INS, 116 F.3d 145 (5th Cir.1997), the petitioners had no asylum or other claims for relief pending when they failed to appear at their first deportation hearing. Id. at 146. In Thomas v. INS, 976 F.2d 786 (1st Cir.1992) (per curiam), the petitioner was subject to deportation based on conviction of a serious crime. Id. at 787.

This court must look to the "particularized facts pressented in each case" in determining whether the petitioner has established exceptional circumstances. Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). This case is exceptional, because the petitioner had no possible reason to try to delay the hearing. Indeed, the hearing was the culmination of years of efforts to obtain lawful permanent residence status. Singh diligently appeared for all of his previous hearings and had even requested a change of venue when he believed he...