Maricarmen Garcia Arredondo v. Loretta E. Lynch , 824 F.3d 801 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARICARMEN GARCIA ARREDONDO, No. 14-71907
Petitioner,
Agency No.
v. A097-355-032
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 4, 2016
Pasadena, California
Filed May 27, 2016
Before: JEROME FARRIS, CARLOS T. BEA, and
MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
2 ARREDONDO V. LYNCH
SUMMARY*
Immigration
The panel denied Maricarmen Garcia Arredondo’s
petition for review of the Board of Immigration Appeals’
denial of her motion to reopen to rescind the in absentia
removal order entered against her.
The panel held that Arredondo’s explanation regarding
why she failed to appear for her Immigration Judge hearing
was not inherently unbelievable or incredible, and that the IJ
and BIA thus erred in disregarding it. The panel held,
however, that even if true, Arredondo’s explanation did not
constitute the requisite exceptional circumstances sufficient
to grant a motion to reopen. As a matter of first impression,
the panel held that a car’s mechanical failure does not alone
compel granting a motion to reopen based on exceptional
circumstances.
COUNSEL
C. Ryan Fisher (argued) and Michael Willard Olson (argued),
Certified Law Students, University of California, Irvine
School of Law; Kathryn M. Davis, Law Office of Kathryn M.
Davis, Pasadena, California; and Peter Afrasiabi, One LLP,
Newport Beach, California, for Petitioner.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ARREDONDO V. LYNCH 3
Jeremy M. Bylund (argued) and Surell Brady, Trial
Attorneys, Office of Immigration Litigation; Keith I.
McManus, Senior Litigation Counsel; Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division,
United States Department of Justice, Washington, D.C., for
Respondent.
OPINION
M. SMITH, Circuit Judge:
Petitioner Maricarmen Garcia Arredondo petitions from
the decision of the Board of Immigration Appeals (BIA)
affirming the Immigration Judge’s (IJ) denial of her motion
to reopen. We deny the petition.
FACTS AND PRIOR PROCEEDINGS
Arredondo applied for asylum and withholding of
removal in October, 2003. In response, the government
initiated removal proceedings. Arredondo filed an application
for cancellation of removal in November, 2003. At the
hearing in December, 2003, she conceded that she was
removable as charged. The IJ granted her application for
voluntary departure.
In March, 2006, Arredondo filed a motion to reopen
based on new evidence that her son “suffers from severe
deformity of his jaw and teeth and will require extensive
dental treatment, braces and care for several years,” and that
her family would therefore suffer exceptional hardship if she
was forced to leave the United States.
4 ARREDONDO V. LYNCH
The BIA denied Arredondo’s 2006 motion to reopen.
Arredondo filed a petition for review, but the government
filed a motion to remand, which we granted. On remand to
the BIA, the government filed a non-opposition to the motion
to reopen. The BIA remanded to the IJ, who set a hearing for
February 2009, but Arredondo did not receive the mailed
notice and failed to appear, so was ordered removed. She then
filed a second motion to reopen in August, 2009 on the
grounds that she had advised the court of her new address in
2008, but the notice had been sent to her old address. The IJ
granted the motion to reopen, and in July 2010, set a hearing
for February 13, 2012. Arredondo again failed to appear, and
the IJ ordered her removed.
In May, 2012, Arredondo then filed the motion to reopen
now at issue. It argued that exceptional circumstances
prevented Arredondo from attending the hearing.
Arredondo’s declaration, stated that she left her house in
Riverside, California at 11:30 a.m. for her 1:00 p.m. hearing
in Los Angeles, but after driving for 25–30 minutes, she felt
a problem with her car’s power, felt some shaking, and saw
some vapor. She checked the temperature, which was high.
She exited the freeway. Her car had overheated. Because she
did not have a phone, she asked people on the street to
borrow theirs to call for help. Her husband and son did not
answer, but she reached a friend. Arredondo’s friend was not
available to drive her to court, but was able to find a
mechanic. The mechanic sent a tow truck, and Arredondo and
the car arrived at the mechanic’s shop at 2:00 p.m. The
mechanic said that he would charge $150 to $200 for a ride
to court, and that the car would not be ready until the next
day. Because Arredondo “did not have that money,” she
called her husband again, who finally answered. It was past
4:00 p.m. when he arrived, and they did not reach the court
ARREDONDO V. LYNCH 5
until 6:30 p.m., after it had closed. Arredondo attached the
car repair bill to her declaration.
The IJ was unsatisfied with the declaration and ordered
Arredondo to submit (1) proof of payment of the car repair
bill, (2) an annotated copy of her telephone bill or other
evidence showing the calls she made that day, (3) an
explanation of why she had not returned her attorney’s call
before the hearing or called her attorney or the court on the
day of the hearing, (4) an explanation concerning why the
final repair bill is dated February 13, 2012, when she stated
the car would not be ready until the next day, (5) an
explanation of why Arredondo said she was on the 5 freeway
northbound in Corona, since the 5 freeway does not run near
Corona; and if she contends that she was actually on the 91
freeway, why she made the mistake in her first declaration;
and why she did not take the considerably shorter routes of
the 10 or 60 freeways.
Arredondo responded with a supplemental declaration.
She stated that as to the repair bill, she paid the full $480
amount in cash when she brought the car in. She had no
canceled check, credit card bill, or bank statement to provide
because she had borrowed the $500 in cash she had that day
to pay her attorney.1 As to the phone bill, consistent with her
initial declaration’s statement that she had to borrow phones
from people on the street, she stated that she did not know or
keep in contact with those strangers, and so could not submit
their phone bills. As to why she failed to call her attorney or
the court on the day of the hearing, Arredondo stated that she
did not have their phone numbers with her.
1
Arredondo submitted no corroboration of the loan, such as a
declaration from the lender.
6 ARREDONDO V. LYNCH
Arredondo did not address why she had not returned her
attorney’s phone calls in advance of the hearing. As to her
earlier statement concerning which freeway she had been
driving on, Arredondo acknowledged that she made a mistake
in her first declaration, and had in fact driven via the 91
freeway. She stated that she made the mistake in her earlier
declaration because she previously lived in Anaheim, and
used to take the 5 freeway to court from that location. She
stated that due to her greater familiarity with the 5 freeway
route, she took the 91 freeway to the 5 freeway even though
the other routes were shorter.
The IJ held that Arredondo’s explanations lacked
credibility. He thought it implausible that Arredondo would
exit the freeway rather than stopping at an emergency call
box on the freeway. He opined that Arredondo should have
submitted phone bills from the recipients of her calls. He
disbelieved that Arredondo paid for her car repair on the day
of the hearing, citing California Business & Professions Code
§ 9884.9(a) and 16 California Code of Regulations § 3353(a),
(c), which, according to the IJ, require car repair shops to
separately list the prices for parts, work, and tax.2 While
Arredondo’s invoice, listed parts and work, it did not provide
a separate price for each. The IJ also found that the invoice
did not comply with 16 California Code of Regulations
§ 3356(a)(1), which requires car repair invoices to include the
2
The IJ wrote that “California law prohibits charging for a repair before
the repair is completed.” While the content of these provisions is
immaterial to our analysis and we accordingly do not construe them, the
cited code section and regulation only appear to say that a written estimate
must be provided before charges are incurred, not that mechanics cannot
accept payment before completion of the work.
ARREDONDO V. LYNCH 7
dealer’s registration number. He therefore gave no weight to
the car repair invoice.
The IJ noted that Arredondo could have traveled from the
repair shop to court before the hearing was held, and should
have used her $500 in cash to do so instead of paying for her
car repair. Finally, the IJ noted that Arredondo had not
explained why she had not returned her attorney’s pre-hearing
calls, and opined that she could have used the mechanic’s
phone to locate the court’s phone number.
The BIA dismissed the appeal, holding that Arredondo
had not presented persuasive evidence to corroborate her
claim. And the BIA held that even were it to fully credit
Arredondo’s claims, they would not demonstrate “exceptional
circumstances,” because she could have used her $500 in cash
to obtain transportation to court rather than pre-pay for her
car repair.
STANDARD OF REVIEW
“The denial of a motion to reopen is reviewed for abuse
of discretion.” Sharma v. INS, 89 F.3d 545, 547 (9th Cir.
1996). The BIA abuses its discretion when its denial of a
motion to reopen 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) (internal
quotation marks omitted).
8 ARREDONDO V. LYNCH
DISCUSSION
I. Standards Governing Motions To Reopen
An in absentia removal order may be rescinded “upon a
motion to reopen . . . if the alien demonstrates that the failure
to appear was because of exceptional circumstances.”
8 U.S.C. § 1229a(b)(5)(C)(i). “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.” 8 U.S.C. § 1229a(e)(1). While the enumerated
examples are not exclusive, exceptional circumstances must
include a “similarly severe impediment.” Singh-Bhathal v.
INS, 170 F.3d 943, 947 (9th Cir. 1999). Additionally, “[t]his
court must look to the ‘particularized facts presented in each
case’ in determining whether the petitioner has established
exceptional circumstances.” Singh, 295 F.3d at 1040 (quoting
Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000)).
“Because motions to reopen are decided without a
hearing, we generally require the Board to accept the
petitioner’s affidavits as true.” Limsico v. INS, 951 F.2d 210,
213 (9th Cir. 1991). Thus, in ruling on a motion to reopen, the
agency “must accept as true the facts stated in [the
petitioner’s] affidavits unless they are inherently
unbelievable.” Id.
ARREDONDO V. LYNCH 9
II. Arredondo Has Not Demonstrated Exceptional
Circumstances.
While Arredondo’s explanation does not reveal great
sophistication, planning, or resources, it is not “inherently
unbelievable” or “incredible.” As such, the IJ and BIA erred
in disregarding it. See id. We therefore turn to the question of
whether Arredondo’s explanation, taken as true, constitutes
exceptional circumstances.
Traffic and trouble finding parking, standing alone, do not
constitute exceptional circumstances justifying a motion to
reopen. Sharma, 89 F.3d at 547 (rejecting the argument that
“exceptional circumstances” carries the same meaning as the
less stringent “reasonable cause” standard). We have not
previously decided whether a car’s mechanical failure
constitutes exceptional circumstances sufficient to grant a
motion to reopen. In Perez v. Mukasey, we expressly declined
to answer that question and held it open for resolution in an
appropriate case, although we noted that “a car’s mechanical
failure is generally an unanticipated occurrence which is
‘beyond the control of the alien.’” 516 F.3d 770, 774 n.2 (9th
Cir. 2008).
We now hold that a car’s mechanical failure does not
alone compel granting a motion to reopen based on
“exceptional circumstances.” The facts of this case
demonstrate why that is so. First, Arredondo left her home in
Riverside only 90 minutes before the scheduled start of her
hearing in downtown Los Angeles, and purposely took an
unnecessarily long route to court. Given the usual traffic
conditions in the Los Angeles area, this left little margin for
error. Then, when her car experienced mechanical failure,
Arredondo did not use the $500 she had to reach the court on
10 ARREDONDO V. LYNCH
time, but instead had her car towed to a mechanic and pre-
paid for the repair.
She also failed to contact her lawyer or the court to
inform them of the problem.3 Because “the Board must
examine the totality of the circumstances” in determining
whether exceptional circumstances have been shown, Celis-
Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002)
(citing Singh, 213 F.3d at 1052), we agree with the BIA, and
hold that mechanical failure coupled with decisions to leave
insufficient time to account for routine delays and to pay for
car repairs instead of transportation to court, does not
constitute exceptional circumstances. Such difficulties are
“less compelling circumstances” than the statutory examples
of “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.”
8 U.S.C. § 1229a(e)(1). We agree with the reasoning of the
Fifth Circuit that “[t]he plain language of the statute indicates
that this is a difficult burden to meet.” Magdaleno de Morales
v. INS, 116 F.3d 145, 148 (5th Cir. 1997) (holding “that the
mechanical failure of the petitioners’ car on the way to the
hearing did not constitute exceptional circumstances” where
petitioners returned home instead of finding transportation to
the hearing and made only a cursory effort to contact the
court).
The totality of the circumstances also includes the merits
of Arredondo’s pending claim for relief when “the denial [of
3
Arredondo also failed to return her lawyer’s phone calls in the days
before the hearing. In fact, Arredondo and her lawyer had not been in
contact since a prior hearing held more than a year and a half before the
hearing in question.
ARREDONDO V. LYNCH 11
a motion to reopen] leads to the unconscionable result of
deporting an individual eligible for relief.” Singh, 295 F.3d at
1040. However, Arredondo did not raise Singh or her pending
claim for relief as part of her argument below.4 And even if
she had, the basis of her motion to reopen, filed in 2006, was
that her son required close to five years of dental treatment.
That treatment should have been completed five years ago,
and her son is now 26 years old. Arredondo has raised no
other substantive basis for her motion to reopen. Thus, her
motion to reopen would fail even if she had raised Singh.
CONCLUSION
The petition is DENIED.
4
The closest Arredondo came to arguing Singh below was in her
opening brief to the BIA, which was submitted by counsel. It argued,
without citation to any authority, that the IJ “failed to address other
important factors about the case,” including Arredondo’s prior
appearances, her intention to appear, and her filing of her motion to
reopen. While this addressed Arredondo’s intention to appear, it did not
include a discussion of the merits of her case for relief from removal.