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Ninth Circuit Dissenter Bemoans ‘Rewriting’ of Statute
Collins Asserts That Majority Disregards Case Law, Language of Statute to Find That Traffic Delays Were Sufficiently Extraordinary to Justify Reversal of in-Absentia Immigration Removal Order
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals yesterday reversed, in a 2-1 decision, an order denying rehearing of an in-absentia removal order entered in an immigration case after the petitioners failed to appear for the hearing—finding that traffic due, to unforeseen car accidents, amounted to exceptional circumstances under a totality of the circumstances—drawing a sharp dissent for “watering down” the statutory standard.
At issue is 8 U.S.C. §1229a(b)(5)(C)(i) which provides that a properly entered in absentia removal order “may be rescinded…if the [noncitizen] demonstrates that the failure to appear was because of exceptional circumstances.”
Subdivision (e) of the section provides that “[t]he 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.”
Appealing the Board of Immigration Appeals’ decision denying her petition for reopening the order was Claudia Montejo-Gonzalez, who left her home at 6:45 a.m. to appear at the 8:30 a.m. removal hearing but was two hours late to court due to two traffic accidents. The immigration judge issued an order of removal for her and her minor children in their absence.
Montenegro-Gonzalez filed a motion requesting that the judge reopen the case but the petition was denied upon a finding that she failed to establish extraordinary circumstances. The Board of Immigration Appeals adopted and affirmed the decision.
Desai’s Opinion
Circuit Judge Roopali H. Desai authored the opinion, joined by Circuit Judge Salvador Mendoza Jr., reversing the denial, concluding that the immigration judge and the Board of Immigration Appeals abused their discretion by failing to consider the “totality of the circumstances” surrounding the tardy appearance, including the petitioner’s lack of control over the traffic and absence of motive for missing the hearing.
The court also said that the board erred by failing to consider the “unconscionable results” of the order, citing the fact that the children may be able to seek derivative citizenship through their father, who had recently obtained U.S. citizenship.
Dissenting, Circuit Judge Daniel P. Collins pointed to Ninth Circuit jurisprudence establishing that traffic delays did not qualify as “extraordinary circumstances” for §1229a purposes and wrote:
“The majority’s opinion in this case…contravenes our controlling precedent and rewrites the strict statutory standard, replacing it with a flexible, multifactor balancing test under which the majority grants the petition for review and orders Petitioners’ removal proceedings to be reopened. Reopening is warranted, the majority holds, because the particular accidents that Petitioners encountered were ‘beyond their control’ (as accidents always are); because they ‘did everything they reasonably could’ to arrive on time (other than leave early enough to account for possible traffic issues); and because it would be ‘unconscionable’ not to hear their claims on the merits (even though Petitioners failed to present a sufficient showing on the merits). All of this is wrong….”
Difficult Burden
Collins said:
“To ensure that aliens who have received formal written notice of their removal hearings will timely appear for those hearings, Congress has authorized the entry of in absentia removal orders when such aliens fail to appear, and it has set extremely strict standards for challenging such orders. Under the applicable statutory standard, no such in absentia order may be set aside unless the alien shows that ‘the failure to appear was [1] because of [2] exceptional circumstances’ that [a] were ‘beyond the control of the alien’ and [b] are not ‘less compelling circumstances’ than specified matters affecting the alien or certain family members, such as ‘serious illness,’ ‘death,’ ‘battery,’ or ‘extreme cruelty.’….‘[T]his is a difficult burden to meet.’ ”
The jurist turned to controlling precedent and said:
“We have repeatedly held that this demanding statutory standard is not satisfied when—as in this case—the aliens failed to appear at their removal hearing because they ‘left little margin for error’ in planning their drive to the courthouse and encountered traffic congestion on the way….Under these precedents, this is an easy case that should have resulted in a brief memorandum disposition denying the petition for review.”
He continued:
“In place of the current, strict statutory language—which focuses only on whether the alien’s failure to appear was caused by ‘exceptional circumstances’ that were ‘beyond the control of the alien’ and that are no ‘less compelling’ than the extreme statutory examples—the majority reframes the applicable standard as more broadly considering whether exceptional circumstances ‘warrant reopening’ or ‘justify a noncitizen’s failure to appear.’ ”
The judge argued that Desai’s opinion effectively announces a new standard, saying:
“[U]nder the majority’s rewriting of the statutory standard, the agency is now required to expressly tick through a punch list of prescribed non-statutory factors, as part of an overall assessment into whether the circumstances are sufficiently exceptional to ‘warrant’ or ‘justify’ reopening and to avoid ‘unconscionable results.’….Thus, even though such factors ordinarily bear no causal relation at all to an alien’s failure to appear for a particular hearing, the BIA now must in every case consider, inter alia, whether the alien’s claim is potentially meritorious and whether the alien had a motivation to deliberately avoid the hearing.”
Dicta Support
He acknowledged that “there is one snippet of dicta” in a case that “stated in passing that, even though the statutory language unmistakably requires a causal link between the asserted exceptional circumstances and the failure to appear, a court may find exceptional circumstances on other grounds” but pointed to the 2024 U.S. Supreme Court case of Campos-Chaves v. Garland as controlling.
Justice Samuel Alito, writing the opinion for the court, said that under the “exceptional circumstances” clause of § 240(b)(5)(C)(i), “relief is conditioned upon the alien’s showing he was not at fault for failing to appear.”
Collins said allowing for reopening “even where the alien is at fault for ‘miss[ing] her hearing because of unexceptional circumstances,’…is directly contrary to this clear instruction from the Supreme Court, which we lack any authority to defy.”
‘Contrary to Precedent’
Under these circumstances, he declared:
“For all of the reasons I have explained, the majority’s decision today is contrary to controlling precedent and impermissibly rewrites clear statutory language. The majority’s deeply flawed decision is particularly regrettable, because its extravagant loosening of the strict statutory standard is likely to result in significant disruption to an already overburdened immigration system….Tens of thousands of [in absentia] orders were undoubtedly issued within this circuit, and aliens who can assert timely challenges…may now all seek reopening under the majority’s flexible standards. That, in turn, will require the immigration courts to consider each of the various factors on the majority’s mandatory punch list in assessing whether reopening is ‘warranted.’ We have no right to replace the more easily administrable, strict standard that Congress adopted, nor do we have the right to impose the resulting burdens on an already far-too-overtaxed system.”
The case is Montejo-Gonzalez v. Garland, 21-304.
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