Ana Francisco Domingo v. U.S. Attorney General , 307 F. App'x 291 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 09, 2009
No. 08-13390 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A77-872-720
ANA FRANCISCO-DOMINGO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 9, 2009)
Before BIRCH, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Ana Francisco Domingo, a native and citizen of Guatemala, petitions this
Court for review of the Board of Immigration Appeals’ order affirming the
Immigration Judge’s (“IJ”) denial of her motion to reopen removal proceedings
following the issuance of a removal order entered in absentia. The BIA agreed
with the IJ that Francisco Domingo did not show that “exceptional circumstances”
beyond her control prevented her from attending the removal hearing. For the
reasons set out below, we deny the petition.
I.
In 2005, Francisco Domingo filed an “Application for Suspension of
Deportation or Special Rule Cancellation of Removal,” pursuant to the Nicaraguan
and Central American Relief Act. The application provided, inter alia, that she was
a native and citizen of Guatemala who had been living in the United States since
her arrival in 1992. She lived in Florida with her husband, who was also a native
and citizen of Guatemala, and her children, who were U.S. citizens. Her husband
had filed an asylum application, which was pending.
In 2006, the Department of Homeland Security (“DHS”) served Francisco
Domingo with a Notice to Appear (“NTA”). The NTA alleged that she was
removable for being an alien present in the United States without being admitted or
paroled, pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).
After granting Francisco Domingo a continuance, the IJ rescheduled the
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removal hearing for September 26, 2007. The IJ personally served Francisco
Domingo with notice of this hearing, which also provided that “[f]ailure to appear
for this hearing other than because of exceptional circumstances beyond your
control will result in your being found ineligible for certain forms of relief . . . .”
On September 26, 2007, the IJ ordered Francisco Domingo removed from
the United States. He explained that Francisco Domingo did not attend the
removal hearing, even though he had provided her with written notification and
had warned that failure to appear would result in removal. Thus, the IJ conducted
the hearing in absentia, pursuant to INA § 240(b)(5)(A), 8 U.S.C.
§ 1229a(b)(5)(A). The IJ stated that Francisco Domingo had conceded
removability at a prior hearing and, therefore, he found “removability established
as charged” in the NTA. Finally, the IJ found that, as a result of Francisco
Domingo’s failure to appear, any previous applications for relief from removal
were deemed “abandoned and denied for lack of prosecution.”
On October 12, 2007, Francisco Domingo filed a pro se motion to reopen the
removal proceedings. She explained that she did not attend the removal hearing
because the windshield wipers broke on the way there, and she could not continue
driving because it was raining. She attached an affidavit from her husband, who
confirmed this account. He added that the windshield wipers broke approximately
one hour before Francisco Domingo’s hearing was scheduled to begin and that,
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like Francisco Domingo, he was unable to attend his own immigration hearing that
morning. He explained that he “could not call a taxi because [he] had little money
to pay.” Instead, he stated that he took the car to a mechanic. He attached the
receipt from the repair shop, which indicated that he paid $175 in cash to repair a
broken windshield wiper.
The IJ issued a decision denying Francisco Domingo’s motion to reopen.
The IJ found that Francisco Domingo had not established “exceptional
circumstances” excusing her failure to attend the hearing, as required under INA
§ 240(b)(5)(C). He explained that “[t]he possibility of rain and minor car troubles
are risks inherent to driving that should be reasonably anticipated,” and there was
no indication that Francisco Domingo attempted to contact the court “at any time
prior to the present motion.” Thus, the IJ found the case to be “on par” with
Magdaleno de Morales v. I.N.S., 116 F.3d 145 (5th Cir. 1997) and Sharma v.
I.N.S., 89 F.3d 545 (9th Cir. 1996), holding that mechanical failure and
traffic/parking difficulties, respectively, did not constitute “exceptional
circumstances.” Finally, the IJ expressed concern with Francisco Domingo’s
husband’s assertion that they did not have money to take a taxi, as the receipt from
the repair shop indicated that they paid $175 in cash.
Francisco Domingo appealed the IJ’s decision to the BIA. In her notice of
appeal, she stated that she did not know why her motion was denied because her
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husband was also ordered removed as a result of his failure to attend his hearing,
but the judge in his case reopened the proceedings. She filed a pro se brief in the
BIA repeating the same point about her husband’s case. For support, she attached
a notification sent by the IJ in her husband’s case, reflecting that the IJ had
scheduled a hearing in the case for July 1, 2008.
On May 16, 2008, the BIA affirmed the IJ’s decision and dismissed the
appeal. The BIA first “agree[d] with the Immigration Judge that the respondent
failed to establish that these proceedings should be reopened based on exceptional
circumstances.” The BIA then rejected Francisco Domingo’s argument that her
husband’s case had been reopened under the same circumstances. It explained
that, while Francisco Domingo submitted evidence that her husband had a hearing
scheduled in July 2008, she did not submit any proof that her husband was ordered
removed in absentia or that his case was reopened based on the same set of facts.
On June 16, 2008, Francisco Domingo petitioned this Court for review of the
BIA’s order.1
II.
“We review only the Board’s decision, except to the extent that it expressly
adopts the IJ’s opinion.” Al Najjar v. Aschroft, 257 F.3d 1262, 1284 (11th Cir.
1
Francisco Domingo’s petition for review was timely because, although she filed it 31 days
after the BIA’s order, the 30th day fell on a Sunday, which gave her until the next business day to
file it. See Fed.R.App.P. 26(a)(3).
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2001). “Insofar as the Board adopts the IJ’s reasoning, we will review the IJ’s
decision as well.” Id. In this case, although the BIA did not expressly adopt the
IJ’s decision, it did “agree” with the IJ that Francisco Domingo did not show
exceptional circumstances sufficient to warrant the reopening of her removal
proceedings. Because the BIA appears to have incorporated the IJ’s reasoning on
this point, we review the decisions of both the BIA and the IJ.
“We review the BIA’s denial of a motion to reopen for abuse of discretion.
Our review is limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (quotation
and citation omitted). “Generally, motions to reopen are disfavored, especially in a
removal proceeding, where, as a general matter, every delay works to the
advantage of the deportable alien who wishes merely to remain in the United
States.” Id. (quotations and alteration omitted).
An alien who fails to attend a removal proceeding “shall be ordered removed
in absentia if the Service establishes by clear, unequivocal, and convincing
evidence that the written notice was so provided and that the alien is
removable . . . .” INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). Such an order
may be rescinded “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
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because of exceptional circumstances (as defined in subsection (e)(1) of this
section) . . . .” INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i). Subsection
(e)(1) provides:
The term “exceptional circumstances” refers to exceptional
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.
INA § 240(e)(1), 8 U.S.C. § 1229a(e)(1).
III.
The issue on appeal is whether the BIA abused its discretion by finding that
Francisco Domingo did not show exceptional circumstances under § 1229a(e)(1).2
Francisco Domingo contends, as she did in her motion to reopen, that she could not
attend the removal hearing because the windshield wipers on her car broke during
a rainstorm on the drive to the hearing.
2
Francisco Domingo does not challenge whether she received notice of the removal hearing
or whether she was removable and, therefore, has abandoned these issues on appeal. Sepulveda v.
U.S. Atty. Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer
argument on an issue, that issue is abandoned.”). Nor does Francisco Domingo raise the primary
argument that she raised in the BIA, namely that the IJ should have reopened her case because her
husband’s case was reopened. Accordingly, she has also abandoned this argument on appeal. Id.Francisco Domingo devotes much of her brief to arguing the merits of her prior application
for cancellation of removal, as she emphasizes that her removal would result in extreme hardship
for her and her family. However, this issue is outside the scope of this appeal, which is limited to
the denial of her motion to reopen.
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The plain language of § 1229a(e)(1) undermines her argument. This is so
because the statute provides that “the term ‘exceptional circumstances’ refers
to . . . 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 . . . .” INA
§ 240(e)(1), 8 U.S.C. § 1229a(e)(1) (emphasis added). Driving with broken
windshield wipers in a rainstorm appears to be far “less compelling” than
circumstances involving battery, cruelty, illness, or death. Thus, Francisco
Domingo’s argument fails under the plain language of the statute.
In addition, the IJ correctly relied on Magdaleno de Morales and Sharma to
support his conclusion in this regard. In Magdaleno de Morales, the Fifth Circuit
held that “the mechanical failure of the petitioner’s car on the way to the hearing
did not constitute exceptional circumstances within the meaning of the Act.” 116
F.3d at 148. And in Sharma, the Ninth Circuit held that “Petitioners’ traffic
difficulties do not qualify as exceptional circumstances beyond Petitioners’
control.” 89 F.3d at 547.
Francisco Domingo does not point to any opposing authority, but rather
attempts to distinguish Magdaleno de Morales and Sharma on the ground that
those cases did not involve the life threatening situation of driving without
windshield wipers in a rainstorm. However, this distinction is not persuasive
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because all three cases involved some sort of car trouble preventing the petitioner
from arriving at the hearing on time; the specific type of car trouble is irrelevant.
Further undermining Francisco Domingo’s contention in this regard is the fact that
her husband paid $175 in cash to repair the car, indicating that she could have used
some of that money for a taxi ride to the hearing.
Moreover, we have emphasized the significance of contacting the IJ in order
to explain one’s inability to attend a removal hearing:
Lonyem did not indicate that he made any effort to contact the
Immigration Court on the day of his removal hearing to alert the IJ of
his absence and to explain the reasons for it. Giving such notice of
one’s unavailability is a minimal and logical step that, if not taken, is a
factor which tends to undermine a claim of exceptional circumstances.
Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003). Similarly, the
Fifth Circuit in Magdaleno de Morales emphasized the fact that, although the
petitioner’s car broke down approximately one hour before the hearing, the
petitioners did not call the IJ to explain what had happened. Id. at 149. Indeed, the
petitioners “did not attempt any further correspondence with the immigration court
until over two weeks after their scheduled hearing, when they received notice of
the in absentia order of deportation.” Id.
In this case, as in Magdaleno de Morales, the affidavit submitted by
Francisco Domingo’s husband provided that the windshield wipers broke
approximately one hour before her hearing. Furthermore, the IJ was correct that
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nothing in the record indicates that Francisco Domingo attempted to contact the
immigration court at any point before filing the motion to reopen. In this respect,
the Fifth Circuit has stated: “In a matter of such overriding importance in an
individual’s life, we would expect such efforts to be made.” Magdaleno de
Morales, 116 F.3d at 149.
For the above reasons, we conclude that the BIA did not abuse its discretion
in finding that Francisco Domingo did not show “exceptional circumstances”
under § 1229a(e)(1) so as to warrant the reopening of her removal proceedings.
Accordingly, we deny the petition for review.
PETITION DENIED.
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