Friday, February 15, 2008
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Court: Late Arrival Did Not Justify Immigration Hearing in Absentia
By STEVEN M. ELLIS, Staff Writer
An immigration judge exceeded his authority by proceeding with an in absentia removal hearing after the alien showed up late, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Voting 2-1 to grant Juan Antonio Perez’s petition for review of a decision ordering him removed in absentia because he failed to appear at his scheduled removal hearing on time, the court held that Perez had not failed to appear—despite arriving two hours late and after his attorney had already left—because he arrived just before the immigration judge finished for the day.
However, in a sharp dissent, Judge Pamela Ann Rymer wrote that “[t]hose facing removal should show up on time and be ready to go forward when their case is called.” She also said that “[a]t the very least, they should be in court within a few minutes of the scheduled time, or call in to explain that they will be late.”
Perez, a native and citizen of Mexico, entered the United States without inspection in 2000 and filed an application for asylum and withholding of removal in 2002.
The former Immigration and Naturalization Service—now part of the Department of Homeland Security—initiated removal proceedings against him and served him with a notice warning that failure to appear at his scheduled removal hearing could result in a removal order being entered in absentia.
Perez was making his way to the courthouse on the date of the hearing when his car overheated in the middle of rush hour traffic. He pulled the car off of the freeway and waited for it to cool, but the car overheated again after he restarted it and tried to drive on surface streets, so Perez left it and found a bus that would take him to the courthouse.
He entered the courtroom approximately two hours after hearing was to start, and the immigration judge was still on the bench. Perez approached the judge’s assistant, handing her his notice of the hearing, but at that moment the judge stood and left.
The judge’s assistant told Perez that the judge was done for the day, and that Perez was too late. The judge issued a removal order later that day.
Perez timely moved to reopen the case, but the judge denied the motion, reasoning that Perez “failed to show that his failure to appear was due to exceptional circumstances.”
The Immigration and Nationality Act requires removal in absentia of an alien who fails to appear for a removal hearing if the alien is removable and received notice of the hearing. The proceedings may only be reopened if the alien can show that the failure to appear was the result of exceptional circumstances beyond the alien’s control, such as battery or extreme cruelty to the alien or any child or parent; serious illness of the alien; or serious illness or death of the alien’s spouse, child, or parent.
The Board of Immigration Appeals summarily affirmed the judge’s decision, and Perez appealed. Although he conceded that he could not show exceptional circumstances, Perez contended that he had not failed to appear because he had arrived at the hearing while the immigration judge was still on the bench.
In an opinion by Judge Stephen Reinhardt, who was joined by Judge Betty B. Fletcher, the court agreed, rejecting Rymer’s conclusion that the decision was both inconsistent with precedent and unworkable.
“The dissent is wrong on both counts,” Reinhardt said. “We have never held that a petitioner who arrived while the [immigration judge] was still in the courtroom failed to appear. We refuse to do so now.”
Reinhardt rejected Rymer’s suggested rule as being “no more workable” than the majority’s decision, saying that a petitioner’s failure to appear would depend on the “fortuity” of when the case is called.
“The circumstances of the present case illustrate why the dissent’s rule would lead to unduly harsh results,” he wrote. “Even assuming that a car’s mechanical failure does not constitute exceptional circumstances, the reality is that cars break down and overheat.”
He continued:
“Under the dissent’s view, removal could be required under these circumstances. This would be so even where, as here, a petitioner makes a good faith attempt to (and does in fact) appear in immigration court despite the occurrence of an unforeseen event and despite the fact that the IJ is present in the courtroom and able to hear his case…
“We see no reason for so harsh a result.”
The case is Perez v. Mukasey, No. 04-73029.
Copyright 2008, Metropolitan News Company