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August 02, 2006

CA1 Finds IJ’s Denial of Motion to Rescind In Absentia Removal Order Based on an Error of Law

Kaweesa v. Gonzales (1st Cir., June 9, 2006)

For purposes of rescinding an in absentia removal order under INA §240(b)(5)(c)(i), the IJ's failure to consider the "totality of the circumstances" in evaluating "exceptional circumstances" is an error of law.

In October 1997, Petitioner filed a request for asylum, withholding of removal and protection under the Convention Against Torture, claiming past persecution by the Ugandan government on account of her religion and human rights activism. The asylum office referred her case to the immigration judge and ordered Petitioner to appear for a hearing on May 13, 1999. Petitioner failed to appear for the hearing and the IJ issued an in absentia removal order. On May 19, 1999, Petitioner filed a pro se motion to reopen her removal proceedings, explaining that she did not appear in court on May 13, 1999 because she had confused the dates and thought her hearing was scheduled for May 17, 1999. The IJ denied the motion, finding that Petitioner had not demonstrated "exceptional circumstances" which would have warranted reopening the case under INA §240(b)(5)(c)(i). The BIA affirmed the IJ's decision without opinion.

Over the course of the next few years, Petitioner filed two additional motions to reopen with the BIA (attaching newly discovered evidence in support of her request for asylum and alleging changed country conditions in Uganda), both of which were denied. She also filed a petition for habeas review with the district court, which argued that the IJ erred in failing to consider the totality of the circumstances surrounding her first motion to reopen and that the BIA's denial of her motions violated her due process rights. On November 18, 2004, the district court held that while it had jurisdiction to review the denial of Petitioner's first motion to reopen, it would transfer the case to the court of appeals for review of the Board's denial of the third motion in accordance with 28 USC §1631 and Arevola v. Ashcroft, 344 F.3d 1, 16 (1st Cir. 2003).

On May 11, 2005, the REAL ID Act took effect and stripped the district court of jurisdiction over Petitioner's remaining habeas claim. Section 106(c) of the REAL ID Act required all district court cases challenging final orders of removal to be transferred to the appropriate court of appeals. Thus, in addition to direct review of Petitioner's third motion to reopen, the court of appeals became vested with the authority to review the IJ's denial of the first motion to reopen.

The court began by noting that under the INA, as amended by the REAL ID Act, it did not have jurisdiction to review discretionary decisions or factual determinations. Mehilli v. Gonzales, 433 F.3d 86, 93 (1st Cir. 2005). However, INA §242(a)(2)(D), which was added by the REAL ID Act, permits jurisdiction over constitutional claims or questions of law. Therefore, the court concluded, to the extent a denial of a motion to reopen constitutes an error of law or a violation of constitutional rights, jurisdiction to review those issues is retained.

An in absentia removal order may be rescinded upon a motion to reopen filed within 180 days of the date of the removal order upon demonstration that the person failed to appear due to "exceptional circumstances." INA §240(b)(5)(C)(i). In reviewing such a motion, the IJ must look at the "totality of the circumstances." Herbert v. Ashcroft, 325 F.3d 68, 70 (1st Cir. 2003). Factors which may be considered include: the timeliness of the motion, the effort made to contact the immigration court, the quality of supporting documentation, the strength of the underlying request for relief, the harm suffered if the motion is denied and the inconvenience to the government if the motion is granted. In re B-A-S, 22 I&N Dec. 57, 58-59 (BIA 1998); Singh v. INS, 295 F.3d 1037, 1039-40 (9th Cir. 2002); Barseghian v. INS, 14 Fed. Appx. 806, 807-08 (9th Cir. 2001).

The court noted that the principles of "notice" and "exceptional circumstances" are derived from the due process requirements of removal proceedings. "Where an alien misses a hearing due to lack of notice or exceptional circumstances, due process concerns, i.e., the right to notice and a meaningful opportunity to be heard, are implicated." It went on to state that removal from the United States visits great hardship on an individual and that these concerns are magnified in cases involving a request for protection from persecution through a grant of asylum, withholding of removal or CAT relief.

The court stated that the evidence indicated that the IJ failed to consider any factors at all when reviewing Petitioner's motion to reopen. Therefore, the court embarked upon its own analysis of the "totality of the circumstances" and first concluded that there was no indication that Petitioner intentionally missed her hearing to delay proceedings: she went to the court immediately after receiving her in absentia removal order, she filed a pro se motion to reopen proceedings just a few days later, and she had asked her employer for a day off on May 17, the date she thought she was supposed to appear in court. Furthermore, the court reiterated the facts alleged by Petitioner in her request for relief--that she was raped by Ugandan security forces, that her husband, parents and brother were killed, and that her son was beaten-and concluded that the harm of returning to Uganda without a hearing was potentially great. Finally, the court stated that because the hearing was only the first scheduled appearance in court, prejudice to the government was insignificant.

The court held that the IJ did not consider the totality of the circumstances and committed an error of law in denying Petitioner's first motion to reopen. Based upon its own review of the facts, the court determined that Petitioner demonstrated exceptional circumstances and that her motion to reopen should have been granted. The court reversed the BIA's denial of Petitioner's motion and remanded the case for a hearing before the IJ on the merits.

Posted by VisaLawyer at August 2, 2006 06:52 AM


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