Teresa Gonzalez v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1122
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Teresa Gonzalez De Jimenez, *
*
Petitioner, *
* Petition for Review
v. * of an Order of the
* Board of Immigration Appeals
John Ashcroft, United States *
Attorney General, *
*
Respondent. *
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Submitted: December 18, 2003
Filed: June 7, 2004
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Before MELLOY, McMILLIAN and BOWMAN, Circuit Judges.
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McMILLIAN, Circuit Judge.
This matter arises out of exclusion proceedings before an immigration judge
which resulted in an in abstentia order finding Teresa Gonzalez de Jimenez
(petitioner) subject to exclusion and deportation following her failure to appear at a
hearing. She now petitions this court for review of an order of the Board of
Immigration Appeals (BIA) denying her motion to reconsider its earlier denial of her
motion to reopen the case. Petitioner maintains that the BIA abused its discretion in
denying her the opportunity to establish reasonable cause for her failure to appear at
the hearing. She argues, among other things, that the BIA misapplied its own
precedent and erroneously disregarded evidence she had presented. For the reasons
stated below, we grant the petition for review and remand the case to the BIA with
instructions.
Petitioner, a citizen of Mexico, became a lawful permanent resident in the
United States when she married a naturalized citizen in 1984. She has two children
from the marriage. In 1986, her husband moved to Texas to receive medical
treatment. Since then, petitioner alone has raised the children. She owns a home in
Wichita, Kansas, where she has worked as a janitor for the City of Wichita for over
fourteen years.
On January 19, 1997, the Immigration and Naturalization Service (INS)
commenced exclusion proceedings against petitioner on the charge that she had
knowingly assisted an alien attempting to enter the United States illegally. Petitioner
was ordered to appear at an exclusion hearing in San Antonio, Texas, on June 3,
1997. Petitioner appeared at that hearing as ordered. At the hearing, petitioner
admitted under oath that she had attempted to help her son’s girlfriend enter the
United States illegally. Although there was no dispute that she had violated the law,
the immigration judge in San Antonio continued the hearing to afford petitioner an
opportunity to apply for a discretionary waiver of deportation under 8 U.S.C.
§ 1182(c) (1994).1 See Administrative Record (A.R.) at 202-03 (Transcript of
Hearing). Petitioner requested that the rescheduled hearing take place in Kansas City,
Missouri, closer to her home, and the immigration judge granted the request.
1
Although § 212(c) of the Immigration and Naturalization Act (INA), 8 U.S.C.
§ 1182(c) (1994), has been repealed, the government does not contend that petitioner
is ineligible for a discretionary waiver on that basis. According to the government,
under the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001), aliens in
removal proceedings may, in some circumstances, “still be eligible for waiver of
deportation pursuant to INA § 212(c), despite its repeal in 1999.” Brief for
Respondent at 7 n.3.
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The rescheduled hearing was set for August 18, 1998, at 9:00 a.m., to be held
before an immigration judge located in Chicago, Illinois. To accommodate
petitioner’s venue request, the hearing was to be conducted telephonically. Petitioner
and the government attorney were duly notified to appear at the INS District Office
in Kansas City, Missouri.
On the morning of August 18, 1998, the government attorney timely appeared
at the INS office in Kansas City, but petitioner did not. On the government’s motion,
the immigration judge issued an exclusion order against petitioner in absentia.
Petitioner did not call the INS office or the immigration court on the date of the
hearing to explain her failure to appear.
Nine days later, on August 27, 1998, the INS office in Kansas City received by
certified mail a letter from petitioner addressed to the “Immigration Judge,” dated
August 19, 1998. In her letter, petitioner acknowledged her failure to appear at the
INS office for her hearing and asked for reconsideration. She explained that, on the
morning of the hearing, she was “unable to locate the address on time” and that one
of her sons had become ill due to the lack of air conditioning in her car. She also
enclosed documents that she had intended to present at the hearing to support her
request for a waiver of deportation. The INS office in Kansas City forwarded
petitioner’s letter and enclosed documents to the immigration judge in Chicago. See
A.R. at 176-84.
Around the same time, petitioner received in the mail the immigration judge’s
in abstentia order stating that she was to be deported from the United States. At the
bottom of the order, the immigration judge had written by hand: “Applicant has 30
days to file Appeal to Board of Immigration Appeals.” A.R. at 185 (in abstentia
order). Included with the order was a form cover sheet signed by the clerk of the
immigration court. On that cover sheet, the following instructions were clearly
checked off:
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ATTACHED IS A COPY OF THE DECISION OF THE
IMMIGRATION JUDGE. THIS DECISION IS FINAL UNLESS AN
APPEAL IS FILED WITH THE BOARD OF IMMIGRATION
APPEALS WITHIN 3O CALENDAR DAYS OF THE DATE OF THE
MAILING OF THIS WRITTEN DECISION. YOUR NOTICE OF
APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER
REQUEST MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
A. at 175 (cover sheet). Printed on the same cover sheet were the following
alternative instructions, which were not checked off:
ATTACHED IS A COPY OF THE DECISION OF THE
IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO
APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL
HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO
REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c)(3)
OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR
SECTION 240(c)(6), 8 U.S.C. SECTION 1229A(c)(6) IN REMOVAL
PROCEEDINGS. IF YOU FILE A MOTION TO REOPEN, YOUR
MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
55 EAST MONROE ST., SUITE 1900
CHICAGO, IL 60603
Id.
Petitioner timely filed an appeal with the BIA as instructed. Her appeal was
pro se. In a handwritten letter, she explained that she could not afford an attorney.
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She further asserted that she had missed the August 18th hearing “because of a sick
child and trouble locating the building,” and she asked the BIA to give her a “second
chance.” A.R. at 158 (pro se appeal).
Three years later, on March 20, 2002, the BIA dismissed petitioner’s appeal.
A.R. at 147-48 (In re: Teresa Gonzalez de Jimenez, File No. A38 946 672 (BIA
Mar. 20, 2002)). In dismissing petitioner’s administrative appeal, the BIA explained:
[A]n in abstentia order is proper in exclusion proceedings if the
alien has been given an opportunity to be present and without reasonable
cause fails or refuses to attend or remain in attendance. Where an alien
later establishes that he or she had reasonable cause for the failure to
appear, the Immigration Judge’s order may be vacated and proceedings
may be reopened, or the alien may appeal the adverse decision directly
to the Board, as the alien has done in the case before us. In exclusion
proceedings, the “reasonable cause” standard will be applied.
An alien has an obligation to appear in Immigration Court at the
time and date indicated on a Notice of Hearing. Normally, a valid
excuse for an alien’s absence will be reasonable under the circumstances
of the case and will be substantiated by evidentiary material or an
affidavit. The applicant has submitted no affidavit or other evidence to
support her claim of her child being sick or being unable to locate the
building.
We conclude that the applicant’s reasons for her failure to appear
do not constitute reasonable cause. General assertions, without more,
do not constitute reasonable cause that would warrant remand of an in
abstentia exclusion proceeding. Claims of an ill child without
corroborative evidence, or mere good intentions toward her family, are
insufficient for satisfying the reasonable cause standard. The applicant
failed to explain why she had been unable to locate the building and did
nothing to alert the Immigration Court of the problem. The applicant
could have ensured her appearance by taking steps earlier to familiarize
herself with the location of the Immigration Court or else find someone
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to accompany her who had knowledge of the area and traffic conditions.
The applicant’s stated reasons for failing to appear do not satisfy the
definition of reasonable cause.
Id. (internal citations omitted).
After receiving the BIA’s order dismissing her appeal, petitioner hired an
attorney. On June 18, 2002, through her attorney, petitioner filed a motion to reopen
along with numerous supporting documents, including her own sworn affidavit which
explained in detail the events surrounding her failure to appear at the hearing on
August 18, 1998. In her affidavit, petitioner stated, among other things, that, on the
morning of the hearing, she left her home at 4:00 a.m., allowing herself four hours to
reach Kansas City and one hour to find the INS District Office. She had not obtained
exact directions to the INS office prior to her trip because she thought she could
successfully ask for directions upon arriving in the city. With her were her two minor
sons, then ages 10 and 15. At approximately 8:00 a.m., petitioner reached Kansas
City, where she encountered heavy traffic. She stopped in the downtown area and
asked several people for directions to the INS office, but no one could help her. She
proceeded to another area of town and again asked for directions. A man incorrectly
told her that the INS office was in Liberty, Missouri, and directed her out of the city,
where she became lost on the highway. She continued driving, hoping that she would
be able to find the INS office. It was hot, and the air conditioning in her car was
broken. Her younger son became ill and vomited in the car. At approximately
10:30 a.m., petitioner gave up and returned home. The next day she wrote the letter
to the immigration judge apologizing for her absence. See A.R. at 92-93 (Affidavit
of Teresa Jimenez).
On September 17, 2002, the BIA denied petitioner’s motion to reopen. A.R.
at 29 (In re: Teresa Gonzalez de Jimenez, File No. A38 946 672 (BIA Sept. 17, 2002)
(per curiam)). The BIA explained:
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We find that the applicant has failed to establish reasonable cause
for her failure to appear at the hearing on August 18, 1998. See Matter
of S-A-, 21 I&N Dec. 1050 (BIA 1997) (a general assertion that traffic
prevented an applicant from reaching his hearing on time does not
constitute reasonable cause). Furthermore, the applicant has not
indicated why she failed to contact the Immigration Court on the day of
her hearing, nor is it clear why she failed to ascertain the location of the
Immigration Court prior to the hearing date. We also note that the
applicant failed to submit her evidence previously to the Immigration
Judge for consideration. See, e.g., Matter of Grijalva, 21 I&N Dec. 27
(BIA 1995) (the Board ordinarily will not consider any previously
available evidence first proffered on appeal, as its review is limited to
the record of proceedings before the Immigration Judge). Accordingly,
the applicant’s motion is denied.
Id.
On October 15, 2002, petitioner filed a motion and supporting brief requesting
that the BIA reconsider its denial of her motion to reopen. In her supporting brief,
she argued, among other things, that the BIA had misapplied Matter of S-A- to her
case and that the BIA had improperly disregarded her evidence. See A.R. at 16-20
(Brief in Support of Motion to Reconsider). In a per curiam order dated
December 12, 2002, the BIA summarily denied her motion to reconsider, stating only
that it could find no reason to reconsider its earlier decision. A.R. at 6 (In re: Teresa
Gonzalez de Jimenez, File No. A38 946 672 (BIA Dec. 12, 2002) (per curiam)). On
January 13, 2003, petitioner filed a notice of petition for review in this court.2
2
Because the underlying exclusion proceedings commenced before April 1,
1997, and concluded after October 30, 1996, our review of the BIA’s order is
governed by the transitional rules of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA). See Fisher v. INS, 291 F.3d 491, 496 (8th Cir.
2002). Under those transitional rules, petition had 30 days from the date of the final
order of exclusion or deportation in which to file her notice of petition for review.
See, e.g., Ibrik v. INS, 108 F.3d 596, 597 (5th Cir. 1997) (per curiam) (explaining
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We begin by addressing the government’s threshold argument that “this Court
has no jurisdiction to review the BIA’s September 17, 2002, decision denying
[petitioner’s] motion to reopen.” Brief for Respondent at 12. The government argues
that petitioner’s notice of appeal was untimely filed vis-a-vis the denial of her motion
to reopen because she filed her notice of appeal thirty days after the BIA’s order
denying her motion to reconsider3 and, under Stone v. INS, 514 U.S. 386, 406 (1995),
the motion to reconsider did not toll the time to appeal from the denial of her motion
to reopen.
As the government suggests, petitioner could have sought immediate review
of the BIA’s dismissal of her motion to reopen. See Stone v. INS, 514 U.S. at 394
(“We conclude that the statute is best understood as reflecting an intent on the part
of Congress that deportation orders are to be reviewed in a timely fashion after
issuance, irrespective of the later filing of a motion to reopen or reconsider.”). Her
failure to do so deprives us of jurisdiction to review directly the BIA’s denial of her
motion to reopen. See, e.g., Belay-Gebru v. INS, 327 F.3d 998, 1000 (10th Cir. 2003)
(where petition for review was filed within 30 days of the denial of the petitioner’s
second motion to reconsider filed with the BIA, holding that the court lacked
jurisdiction under the IIRIRA transitional rules to review the BIA’s dismissal of the
petitioner’s appeal of the immigration judge’s deportation order or the BIA’s denial
of the petitioner’s first motion to reconsider). However, petitioner’s failure to seek
judicial review of the BIA’s earlier order does not deprive us of jurisdiction to review
the BIA’s denial of her motion to reconsider. Indeed, the proposition that a petitioner
might first seek reconsideration from the agency and then, if unsuccessful, seek
operation of transitional rules with respect to time in which to file petition for
review).
3
The thirtieth day after the denial of the motion to reconsider fell on a Saturday.
Consequently, the relevant date for filing purposes was the following Monday,
January 13, 2003. See Fed. R. App. P. 26(a)(3).
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judiciary review was specifically recognized by the Supreme Court in Stone v. INS,
514 U.S. at 405-06 (“[t]he alien, if he chooses, may also seek agency reconsideration
of the order and seek review of the disposition upon reconsideration”). The BIA’s
denial of petitioner’s motion to reconsider is an “order of deportation” for purposes
of permitting judicial review. See Chow v. INS, 113 F.3d 659, 664 (7th Cir. 1997)
(“Congress has not clearly expressed an intent to depart from the long line of
Supreme Court and appellate court decisions interpreting ‘order of deportation’ to
include orders denying motions to reconsider and reopen.”). Moreover, the BIA’s
dismissal of petitioner’s pro se appeal and its denial of her motion to reopen are not
res judicata with respect to issues raised by the motion to reconsider. Cf. Desta v.
Ashcroft, 329 F.3d 1179, 1183-84 (10th Cir. 2003) (“An unchallenged ruling by the
BIA on a motion to reconsider is final in that it is separately appealable. But it is not
res judicata with respect to an issue pending on judicial review of the original
decision of the BIA.”) (internal footnote omitted). Thus, we have jurisdiction to
review the BIA’s denial of petitioner’s motion to reconsider and, in so doing, we may
revisit any relevant issues addressed by the BIA’s denial of petitioner’s motion to
reopen. In other words, although we are not directly reviewing the BIA’s order
denying petitioner’s motion to reopen, our review of the denial of the motion to
reconsider may require us to consider the validity of that order.
According to petitioner, she set forth in her motion to reconsider compelling
reasons for the BIA to rescind its denial of her motion to reopen. As indicated above,
the BIA denied the motion to reopen because: (1) petitioner could not, under Matter
of S-A-, rely upon the “general assertion” that traffic prevented her from reaching the
hearing to establish reasonable cause for her failure to appear; (2) petitioner had not
explained her failure to obtain directions to the INS office prior to the hearing date
or her failure to contact the immigration court on the day of the hearing; and (3) the
BIA could not consider petitioner’s submitted evidence because that evidence had not
previously been presented to the immigration judge. In arguing to the BIA that it had
abused its discretion, petitioner emphasized that “Matter of S-A- does not establish
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a per se rule that traffic-related reasons can never be ‘reasonable cause’ for failure to
appear at an immigration hearing.’” Matter of S-A-, petitioner explained, “instructs
applicants seeking reopening of hearings conducted in abstentia to provide ‘detail
that would enable [the BIA] to meaningfully evaluate his [or her] claim.’” A.R. at 17
(Brief in Support of Motion to Reconsider). Moreover, petitioner continued, the BIA
emphasized in Matter of S-A- that the applicant had credibility problems, which is not
the case here. In Matter of S-A-, not only did the applicant claim that traffic
prevented his timely appearance at his hearing, he also tried to argue (inconsistently)
that he had never received notice of the hearing. By contrast, petitioner argued, she
had consistently and credibly explained her reasons for failing to appear at the INS
office in Kansas City despite her best efforts. See id. at 17-18.
Petitioner also argued in her motion to reconsider that the BIA had improperly
disregarded her evidence in denying her motion to reopen. The BIA cited Matter of
Grijalva, 21 I&N Dec. 27 (BIA 1995), for the proposition that “the Board ordinarily
will not consider any previously available evidence first proffered on appeal, as its
review is limited to the record of proceedings before the Immigration Judge.” A.R.
at 25 (BIA order denying motion to reopen). The BIA then concluded: “Accordingly,
the applicant’s motion is denied.” Id. In response, petitioner explained:
This Board’s indication that there was something improper about
the presentation of evidence was erroneous. Optimally, Mrs. Jimenez
would have been notified in the Order of the Immigration Judge that she
had an opportunity to move to reopen her proceedings in Immigration
Court rather than of the advisement that she had 30 days to appeal to this
Board. That was not her fault.
A.R. at 20 (Brief in Support of Motion to Reconsider).
Thus, petitioner argued, the BIA should reconsider its earlier decision which
was based upon, among other asserted errors, a misapplication of Matter of S-A- and
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a mistaken assumption that she had improperly ignored an opportunity to present her
evidence to the immigration judge. Now, before this court, petitioner maintains that
the BIA abused its discretion in summarily rejecting her arguments supporting her
motion to reconsider.
We agree with petitioner that the BIA incorrectly applied Matter of S-A- in the
present case. As the BIA recognized, Matter of S-A- holds that a general assertion
about heavy traffic, alone, will not suffice to establish reasonable cause to reopen an
in abstentia exclusion order. In the present case, however, petitioner gave a detailed
description of a multitude of factors contributing to her failure to appear at the
hearing in question.
Moreover, petitioner tried to present evidence supporting her detailed
explanation for her failure to appear. The BIA indicated that it would not consider
petitioner’s evidence because she had failed to present it to the immigration judge
first. The only way that petitioner could have first presented this evidence to the
immigration judge would have been by filing a motion to reopen with the
immigration court immediately upon receiving the immigration judge’s in abstentia
order of exclusion and deportation. However, in this particular case, petitioner did
not have a reasonable opportunity to do so. The immigration judge’s order
specifically instructed her: “Applicant has 30 days to file Appeal to Board of
Immigration Appeals.” The cover sheet signed by the clerk of the immigration court
additionally instructed her that the immigration judge’s decision would become final
unless she filed an appeal with the BIA within 30 days; that cover sheet also implied
that she should not file a motion to reopen with the immigration court. In other
words, petitioner – who was then acting pro se – was affirmatively and incorrectly
instructed by both the immigration judge and the clerk of the immigration court that
her next step was to appeal to the BIA, not to file a motion to reopen with the
immigration court. Had they correctly instructed her that she should move to reopen
the in abstentia order in the immigration court, that undoubtedly would have been her
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next course of action. Given these facts, she should not be penalized for her failure
to first present her evidence to the immigration judge. Once this injustice had been
brought to the BIA’s attention by her motion to reconsider, the BIA should have
corrected the error.
We therefore hold that the BIA abused its discretion in denying petitioner’s
motion to reconsider. The petition for review is granted, and the matter is remanded
to the BIA with instructions to remand this case to the immigration court with
instructions to permit petitioner a reasonable opportunity to file a motion to reopen
in that court.
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