The Board of Immigration Appeals has issued a decision in Matter of S-L-H- & L-B-L-, 28 I&N Dec. 318 (BIA 2021).
(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.
PANEL: GREER, O’CONNOR, and GOODWIN, Appellate Immigration Judges.
OPINION: Judge Deborah K. Goodwin
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Interesting points:
1) This case “clarifies and reaffirms” Matter of S-A-, 21 I&N Dec. 1050 (BIA 1997) a “Schmidt Board” en banc precedent written by Judge Gerry Hurwitz. My Round Table colleague Judge Lory Rosenberg and I dissented. Here is my dissent:
DISSENTING OPINION: Paul W. Schmidt, Chairman
I respectfully dissent.
On appeal from the denial of his motion to reopen in absentia exclusion proceedings, the applicant has submitted an affidavit stating that the
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information furnished in support of his earlier motion to reopen on notice grounds was not authorized by him. I would not reject this contention and find the applicant, in effect, incredible by reason of inconsistent statements without giving him an opportunity for an evidentiary hearing on the truth of his contention that he did not authorize the inconsistent representations contained in his earlier motion. Cf. Arrieta v. INS, 117 F.3d 429 (9th Cir. 1997) (finding remand appropriate to give the respondent an opportunity to provide evidentiary support for statements made in an affidavit accompanying a motion to reopen).
In his first motion to reopen and on appeal, the applicant, who lives a distance of several hours from the Immigration Court, claims that he was 20-30 minutes late for his hearing because of traffic congestion. If this were in fact the case, the interests of justice and the statutory purpose of providing fair hearings to aliens before removing them from the United States would have been better served by the Immigration Judge exercising his available discretion to hear the case at another time during the day. See Romano-Morales v. INS, 25 F.3d 125 (2d Cir. 1994)(stating that rules regarding in absentia hearings should be carefully applied to avoid conflict with statutory or constitu- tional rights); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996) (stating that notwithstanding rules governing in absentia hearings, an Immigration Judge retains authority to excuse presence, grant a continuance, or change venue). I am not necessarily convinced that every incidence of tardiness must be treated as an “absence” from the hearing.
I therefore dissent from the decision to dismiss the applicant’s appeal.
Perhaps, in disavowing a “per se” rule on traffic delays, referring to the “totality of the circumstances,” and setting forth some useful criteria to guide practitioners, the panel at least “inched” toward the position Lory and I articulated in our respective 1997 dissents.
2) The “prevailing attorney” in this case, Farhad B. Sethna, Esquire, Cuyahoga Falls, Ohio, was a “regular” before the Arlington Immigration Judges during the years we were responsible for the Cleveland, Ohio docket.
🇺🇸Due Process Forever!
PWS
06-30-21
