S-L-H- & L-B-L ( 2021 )

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Matter of S-L-H- & L-B-L-, Respondents
Decided June 30, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Immigration Judges may exercise their discretion to rescind an in absentia removal
order and grant reopening where an alien has established through corroborating
evidence that his or her late arrival at a removal hearing was due to “exceptional
circumstances” under section 240(e)(1) of the Immigration and Nationality Act,
8 U.S.C. § 1229a(e)(1) (2018), and, in doing so, should consider factors such as the
extent of the alien’s tardiness, whether the reasons for the alien’s tardiness are
appropriately exceptional, and any other relevant factors in the totality of the
circumstances.
(2) Corroborating evidence may include, but is not limited to, affidavits, traffic and
weather reports, medical records, verification of the alien’s arrival time at the
courtroom, and other documentation verifying the cause of the late arrival; however,
general statements—without corroborative evidence documenting the cause of the
tardiness—are insufficient to establish exceptional circumstances that would warrant
reopening removal proceedings. Matter of S-A-, 21 I&N Dec. 1050 (BIA 1997),
reaffirmed and clarified.
FOR RESPONDENT: Farhad B. Sethna, Esquire, Cuyahoga Falls, Ohio
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jeremy Santoro, Assistant
Chief Counsel
BEFORE: Board Panel: GREER, O’CONNOR, and GOODWIN, Appellate Immigration
Judges.
GOODWIN, Appellate Immigration Judge:
On March 6, 2019, an Immigration Judge ordered the respondents
removed in absentia. They filed a motion to rescind the in absentia order and
reopen their removal proceedings. In a decision dated May 3, 2019, the
Immigration Judge denied their motion. The respondents have appealed
from this decision. The Department of Homeland Security opposes the
appeal. The appeal will be sustained, the proceedings will be reopened, and
the record will be remanded.
The respondents are a mother and son who are natives and citizens of
Guatemala. They entered the United States without admission or parole. On
December 5, 2016, the female respondent attended an initial master calendar
hearing. On March 21, 2017, she filed an application for asylum under
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section 208(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1158(b)(1)(A) (2012), withholding of removal under section 241(b)(3)(A)
of the Act, 8 U.S.C. § 1231(b)(3)(A) (2012), and protection under the
regulations implementing the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for
signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51,
at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987;
for the United States Apr. 18, 1988) (“Convention Against Torture”). 1 On
September 8, 2017, the female respondent appeared at the Cleveland
Immigration Court for an individual hearing on the merits of her application,
but proceedings were continued to March 6, 2019.
On that date, the female respondent did not appear in the courtroom at the
scheduled time of her continued hearing. Therefore, the Immigration Judge
properly entered an in absentia order in this matter. See section 240(b)(5)(A)
of the Act, 8 U.S.C. § 1229a(b)(5)(A) (2018); 8 C.F.R. § 1003.26(c) (2020).
The respondents subsequently filed a motion to rescind the in absentia
removal order and reopen proceedings on March 11, 2019.
As an initial matter, we conclude that the respondents’ motion was timely
under the general 90-day filing deadline governing motions to reopen and the
extended 180-day filing deadline governing motions based on a claim that
“exceptional circumstances” caused a failure to appear at a removal hearing.
See sections 240(b)(5)(C)(i), (c)(7)(C)(i) of the Act; 8 C.F.R.
§ 1003.23(b)(1), (4)(ii) (2020).
In the motion to reopen, the respondents averred that the female
respondent arrived late for her hearing, despite hiring a driver, as a result of
severe weather conditions and related traffic accidents. They further
contended that she established exceptional circumstances, which excuse her
late arrival and warrant rescinding the in absentia removal order and
reopening proceedings. See section 240(b)(5)(C)(i) of the Act; see also
section 240(e)(1) of the Act (defining “exceptional circumstances” for
purposes of section 240(b)(5)(C)(i) of the Act).
In support of the motion, the respondents submitted affidavits from the
female respondent and her driver, as well as media reports describing snow
and multiple traffic accidents that occurred the morning of the hearing. The
reports document severe traffic delays that affected several major
thoroughfares in Ohio, including I-71, I-76, I-77, I-271, and I-480. Weather
data indicated that the temperature for the day was lower than usual for the
time of year. The driver attempted to take I-480, but became stuck in a heavy
traffic jam caused by an accident. Although the driver exited I-480 and took
1
The male respondent is a derivative beneficiary of his mother’s asylum application. He
also filed a separate application for asylum and withholding of removal under the Act and
the Convention Against Torture.
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side streets to the Cleveland Immigration Court, the female respondent
arrived at the Immigration Court at 9:10 a.m., 40 minutes after the scheduled
start time of her hearing.
The Immigration Judge denied the respondents’ motion to reopen, finding
that the female respondent did not establish exceptional circumstances for
her untimely appearance. 2 The respondents reassert their arguments on
appeal. Relatedly, the female respondent contends that her situation is
exceptional because she appeared at all prior hearings during a period of
9 months, the respondents previously filed asylum applications with the
Immigration Court, and she promptly filed a motion to reopen. 3
Untimely appearances in Immigration Court severely impact the
functioning of the court. Congress has mandated that a failure to appear for
a scheduled hearing may only be excused by “exceptional circumstances.”
Section 240(b)(5)(C)(i) of the Act. Reasons for a tardy appearance may
constitute “exceptional circumstances” in some situations, even if those
reasons are not specified in section 240(e)(1) of the Act.
Because Congress clearly intended to require an alien to either appear
before an Immigration Court or show exceptional circumstances justifying
a failure to appear, we conclude that an alien’s tardiness may only be excused
if the alien clearly demonstrates exceptional circumstances justifying his or
her late appearance. Adverse weather conditions, traffic congestion, and
security checkpoints in Government buildings are common issues faced by
travelers. Therefore, delays caused by these factors and similar
commonplace delays will not ordinarily constitute sufficiently exceptional
circumstances to excuse the late arrival of an alien to the courtroom. In cases
such as these, where the alien has been ordered removed in absentia
following a failure to timely appear, the alien must demonstrate exceptional
circumstances as required by the Act. Where the alien demonstrates reasons
2
The respondents also contend that the female respondent’s late arrival does not
constitute a failure to appear under section 240(b)(5) of the Act. The United States Court
of Appeals for the Sixth Circuit, in whose jurisdiction this case arises, has not issued
a precedential decision on this issue. See Camaj v. Holder, 625 F.3d 988, 992–93 (6th Cir.
2010) (discussing in dicta other circuit court decisions addressing whether “slight
tardiness” to one’s hearing constitutes a failure to appear at an immigration proceeding).
Because we conclude that the female respondent established exceptional circumstances
that excuse her late arrival, we do not consider her argument in this regard, which was not
addressed by the Immigration Judge.
3
Although the female respondent further argues that she demonstrated reasonable cause
for her late arrival, this standard is inapplicable to the instant matter. See Matter
of Cruz-Garcia, 22 I&N Dec. 1155, 1159 (BIA 1999) (holding that the “reasonable cause”
standard applies to aliens who are seeking to reopen deportation proceedings conducted
under former section 242(b) of the Act, 8 U.S.C. § 1252(b) (1988)). We also observe that
the respondents’ appellate brief relies upon several unpublished Board decisions, which
“are not binding precedent.” Matter of Echeverria, 25 I&N Dec. 512, 519 (BIA 2011).
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for his or her tardiness beyond commonplace delays, such as a serious and
unforeseeable accident preventing a timely appearance, then the alien may
be able to demonstrate “exceptional circumstances” as defined in section
240(e)(1) of the Act, depending on the specific facts of the case.
The decision to grant or deny a motion to reopen based on a late
appearance due to exceptional circumstances is within the discretion of the
Immigration Judge. 8 C.F.R. §1003.23(b)(1)(iv). The term “exceptional
circumstances” refers to situations “beyond the control of the alien,” 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.” Section 240(e)(1) of the Act.
In determining whether an alien has established exceptional
circumstances, the “totality of the circumstances” pertaining to the alien’s
case should be considered. E.A.C.A. v. Rosen, 985 F.3d 499, 504 (6th Cir.
2021) (quoting Acquaah v. Holder, 589 F.3d 332, 335 (6th Cir. 2009)). How
late the alien arrives for her scheduled court appearance is a significant factor
to consider, along with the reason(s) for her tardiness, in the totality of the
circumstances. See generally Murillo-Robles v. Lynch, 839 F.3d 88, 92–94
(1st Cir. 2016) (holding that the Board abused its discretion by not giving
proper weight to the minor extent of an alien’s tardiness). 4
The totality of the circumstances approach may also take into account any
other factors relevant to the alien’s individual case. For example, an alien’s
young age may be relevant where there are multiple impediments to
attending the removal hearing. See E.A.C.A., 985 F.3d at 505–06. Other
factors, such as prior attendance at hearings, eligibility for relief from
removal, and promptness in filing the motion to reopen may shed light on
whether the alien intended to appear on time or otherwise had an incentive
to do so. See Jimenez-Castro v. Sessions, 750 F. App’x 406, 409 (6th Cir.
4
Motions form a large category of determinations involving factor-based analysis tied to
the evidence presented. For example, in the continuance context, these requests typically
involve an evaluation of specific factors that fit a procedural framework. See, e.g., Matter
of L-A-B-R-, 27 I&N Dec. 405, 413 (A.G. 2018) (discussing and refining factors to consider
in deciding whether to continue removal proceedings pending adjudication of
a family-based immigrant visa petition). While case law for the particular application for
relief provides guidance on relevant factors to consider, Immigration Judges are not limited
in this regard and assign weight as they see fit. See INS v. Yueh-Shaio Yang, 519 U.S. 26,
30 (1996) (explaining that the statute does not limit the factors that may be considered in
determining discretionary merit for a waiver of deportability under former section
241(a)(1)(H) of the Act, 8 U.S.C. § 1251(a)(1)(H) (1994)). Significantly, the Immigration
Judge must consider and weigh both positive and negative factors. See Matter of
Aguilar-Mendez, 28 I&N Dec. 262, 266–67 (BIA 2021) (remanding for the Immigration
Judge to make findings of fact regarding the relevant favorable and unfavorable factors in
an application for voluntary departure).
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2018); see also Acquaah, 589 F.3d at 335–36; cf. Santos-Santos v. Barr, 917
F.3d 486, 492 (6th Cir. 2019) (stating that an alien’s prior applications for
relief and previous attendance at Immigration Court hearings are factors in
determining whether rescinding an in absentia removal order is warranted
based on a lack of notice under section 240(b)(5)(C)(ii) of the Act); Matter
of M-R-A-, 24 I&N Dec. 665, 674 (BIA 2008) (same).
Furthermore, an alien must provide adequate documentary evidence to
support a claim of exceptional circumstances. See, e.g., Matter of B-A-S-, 22
I&N Dec. 57, 58–59 (BIA 1998); Matter of Ali, 21 I&N Dec. 1058, 1060
(BIA 1997). Such evidence should corroborate the cause of the alien’s late
appearance. General statements alone will generally be insufficient to
establish exceptional circumstances. See Matter of J-P-, 22 I&N Dec. 33, 34
(BIA 1998); see also Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341 & n.6
(11th Cir. 2003) (per curiam) (concluding that an affidavit of a nurse was
insufficient to corroborate an alien’s claim that he was too sick to attend his
removal hearing); Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir.
2002) (determining that an alien provided insufficient evidence of the
severity of his illness); Ursachi v. INS, 296 F.3d 592, 594 (7th Cir. 2002)
(same).
Section 240(b)(5)(A) of the Act provides that an alien who does not attend
a proceeding “shall be ordered removed in absentia.” An alien’s tardiness or
absence is determined from the scheduled start time of the removal hearing,
and the arrival time at the removal hearing is the time at which the alien
enters the courtroom. See Herbert v. Ashcroft, 325 F.3d 68, 70 (1st Cir. 2003)
(noting that an alien had “arrived late” for his hearing, which was scheduled
to begin at 1:00 p.m., when he failed to “actually arrive at the courtroom until
around 1:30 p.m.”).
In Matter of S-A-, 21 I&N Dec. 1050, 1051 (BIA 1997), we held that an
alien’s general assertion that he was prevented from reaching his hearing on
time by heavy traffic does not constitute reasonable cause that would warrant
reopening of his proceedings. As noted, the “reasonable cause” standard—
which predates the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.
3009-546—applies to proceedings under former section 242(b) of the Act,
8 U.S.C. § 1252(b) (1988).
In that case, the alien submitted an affidavit asserting that he arrived late
for his hearing because of heavy traffic. Matter of S-A-, 21 I&N Dec. at 1051.
We concluded that this affidavit did not contain sufficient detail, such as the
alien’s time of departure indicating how much time he allocated for travel,
information regarding the location of the heavy traffic or reason for the
traffic, or information regarding the efforts made to alert court personnel
about his arrival. Under these circumstances, we held that the Immigration
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Judge correctly determined that the alien did not establish reasonable cause
for his tardy arrival at the hearing.
In Matter of S-A-, we did not create a per se rule that traffic conditions
cannot be an acceptable reason for a tardy appearance at a hearing. See
De Jimenez v. Ashcroft, 370 F.3d 783, 789–90 (8th Cir. 2004). Instead, this
Board held that an alien’s uncorroborated general statements will generally
be insufficient to meet the burden of proof to establish reasonable cause for
a late appearance. We reaffirm this holding. We also take this opportunity
to clarify and extend the evidentiary framework in Matter of S-A- to
proceedings falling under the exceptional circumstances standard, because
this Board has not yet addressed this standard.
We review the Immigration Judge’s decision, which is a discretionary
determination, pursuant to our de novo authority. See 8 C.F.R.
§ 1003.1(d)(3)(ii) (2020). Although the Immigration Judge acknowledged
that the female respondent presented evidence of weather and traffic
conditions on the morning of the hearing, his decision did not contain
significant consideration or analysis of this evidence. The Board generally
does not engage in fact-finding in the course of deciding cases. See 8 C.F.R.
§ 1003.1(d)(3)(iv). However, we review the application of legal principles
to the undisputed facts de novo. See Mapouya v. Gonzales, 487 F.3d 396,
405 (6th Cir. 2007).
Pursuant to our de novo review, we conclude that the female respondent
has established exceptional circumstances for her tardy appearance under the
totality of the circumstances. Where an alien appears late to a removal
hearing as a result of weather and traffic conditions, he or she may establish
exceptional circumstances that would warrant reopening the removal
proceedings where the extent of the tardiness was reasonable given the cause
of the delay, the circumstances causing the tardiness were appropriately
exceptional on a case-by-case basis, the weather and traffic conditions were
not foreseeable, and the alien provided sufficient documentation
corroborating the cause of the tardiness. Other factors, such as any prior
affirmative application for relief, previous attendance at Immigration Court
hearings, and other evidence indicating that the alien intended to appear at
the hearing, may support an exceptional circumstances claim.
We observe that the extent of the female respondent’s tardiness was
reasonable given the traffic and weather conditions she encountered, as she
avers that she arrived in the courtroom at 9:10 a.m., 40 minutes after the
scheduled start time of her hearing. We consider the reasons for that
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tardiness to determine whether the female respondent has shown exceptional
circumstances excusing her 40-minute late appearance. 5
On this record, we conclude that she presented appropriately exceptional
circumstances for her tardiness. As the female respondent does not drive,
she hired a professional driver, upon whom she relied to arrive at the
courtroom on time. Despite this planning, she was tardy because of a snow
storm, which caused multiple accidents and severe traffic on several major
thoroughfares in Ohio on the morning of her hearing. Moreover, weather
reports indicated that the temperature was lower than usual for the time of
year. These severe weather and traffic conditions are distinguishable from
the ordinary or foreseeable traffic delays at issue in Matter of S-A-.
Further, the female respondent’s corroborating information—including
the affidavits and the weather and traffic reports—provided sufficient details
documenting the reasons for her tardiness. See section 240(c)(7)(B) of the
Act (providing that motions to reopen “shall be supported by affidavits or
other evidentiary material”); 8 C.F.R. § 1003.23(b)(3) (same). In Matter of
S-A-, the alien’s affidavit contained a general assertion that traffic prevented
him from arriving on time to his hearing, without describing the location of
or reason for the traffic. Matter of S-A-, 21 I&N Dec. at 1051. Conversely,
in this case, the affidavits from the female respondent and her driver explain
that they were stuck in a traffic jam on I-480 caused by weather and a traffic
accident, which required the use of side streets. The weather and traffic
reports support the allegations in both affidavits of severe weather and delays
caused by crashes on multiple thoroughfares, including I-480, the route taken
by the female respondent’s driver. These detailed, corroborated allegations
of unusual weather and traffic conditions affecting the female respondent’s
specific route to the Immigration Court go beyond the general,
uncorroborated assertions at issue in Matter of S-A-.
Finally, the female respondent attended prior hearings conducted over
a 9-month period, including a September 8, 2017, hearing on the merits of
her asylum application. She also filed a motion to reopen proceedings on
March 11, 2019, 5 days after the in absentia order was entered. Her previous
Immigration Court attendance, the prior applications for relief filed with the
Immigration Court, and the promptness with which she filed her motion to
reopen support her argument that she intended to timely appear at the
March 6, 2019, hearing. See Jimenez-Castro, 750 F. App’x at 409;
cf. Santos-Santos, 917 F.3d at 492. Under the totality of the circumstances,
the female respondent established that exceptional circumstances excused
her tardy appearance at the hearing.
5
While we do not decide that such a late arrival will always constitute a reasonable
tardiness, we arrive at this conclusion under the circumstances of this case. We emphasize
that whether an alien’s tardiness is reasonable is to be determined on a case-by-case basis.
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We hold that Immigration Judges may exercise their discretion to rescind
an in absentia removal order and grant a motion to reopen where an alien has
established through corroborating evidence that his or her late arrival to the
removal hearing was due to “exceptional circumstances” under section
240(e)(1) of the Act. When making this case-by-case determination,
Immigration Judges should consider factors such as the extent of the alien’s
tardiness, whether the reasons for the alien’s tardiness are appropriately
exceptional, and any other relevant factors in the totality of the
circumstances. Corroborating evidence may include, but is not limited to,
affidavits, traffic and weather reports, medical records, verification of the
alien’s arrival time at the courtroom, and other documentation verifying the
cause of the late arrival. General statements—without corroborative
evidence documenting the cause of the tardiness—are insufficient to
establish exceptional circumstances that would warrant reopening removal
proceedings.
We emphasize that this case provides guidance to fill a gap. Here, we
have explained that an Immigration Judge, who properly entered an in
absentia order of removal, has the authority to determine whether a late
arrival constitutes “exceptional circumstances” under section 240(e)(1) of
the Act. To provide a focused, efficient approach for adjudication, we have
additionally explained the particular types of factors and corroborative
evidence that are relevant to such a motion. 6 Accordingly, we will rescind
the in absentia order, reopen the proceedings, and remand the record.
ORDER: The appeal is sustained, the in absentia order of removal is
rescinded, the proceedings are reopened, and the record is remanded for
further proceedings consistent with the foregoing opinion.
6
Immigration Judges specialize in making discretionary determinations and judgments.
These assessments arise in multiple contexts, including this motion to rescind the in
absentia order of removal and reopen proceedings. The Board’s role in setting the
standards for making these discretionary determinations and judgments is pivotal. See, e.g.,
Matter of Rajah, 25 I&N Dec. 127, 135–37 (BIA 2009) (providing, in the employment visa
context, discretionary standards for evaluating whether an alien has demonstrated “good
cause” for a continuance, as directed by the Second Circuit in Rajah v. Mukasey, 544 F.3d
449, 450 (2d Cir. 2008)).
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