- posted: Feb. 01, 2019
In a landmark judgment, the Court of Appeals for Third Circuit held that missed removal hearing based on non-legal bad advice was neither extreme nor beyond petitioner’s control. The court affirmed that in absentia order did not violate due process. This marks a stark difference from Cabrera-Perez (slight lateness vs. failure to appear) in which case Cabrera entered Immigration Court on Aug 11, 2003 late. The IJ took the bench at 1:00 p.m., and ordered removal in absentia at approximately 1:20 p.m. IJ denied her motion to reopen. Cabrera appealed pro se to the Board of Immigration Appeals (BIA) and BIA concluded that her claim that she entered the Courthouse before the IJ issued her order was not a basis for reopening. On September 22, 2004, Cabrera moved pro se to reopen the BIA's August 25, 2004 decision, essentially on the same grounds, but she also argued that she was eligible for cancellation of removal under INA § 240A(b). The motion was denied on November 10, 2004 as untimely with respect to the August 11, 2003 in absentia final administrative order. Cabrera then filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in United States District Court for the District of New Jersey, challenging, on due process grounds, the in absentia order and the BIA's affirmance of the order denying her motion to reopen, and claiming that she was entitled to relief on her I-751 waiver petition and eligible for cancellation of removal. United States District Court for the District of New Jersey granted the petition for review, reversed the August 11, 2003 in absentia removal order, and the August 25, 2004 and November 10, 2004 decisions of the Board of Immigration Appeals, and remanded for further proceedings.
Jean Louis v. Att’y Gen relates to a non-lawyer “immigration expert” who advised Dieuland Jean Louis that he could miss his asylum hearing without consequence. Accordingly, Jean Louis missed his asylum hearing. But Gustave Thermitus who held himself out as an “immigration expert” was wrong and an immigration judge relied on Jean Louis’s absence to order his removal in absentia.
Jean Louis who is a native and citizen of Haiti, entered the United States illegally and subsequently applied for asylum. While his asylum application was pending, he married a U.S. citizen and sought citizenship on that basis. Jean Louis received a notice, dated August 2016, notifying him of hearing date in June 2017 and made it specifically clear that in the event Jean Louis failed to attend the hearing, the immigration judge could hold the hearing and remove Jean Louis. Jean Louis, who does not speak English approached Gustave Thermitus [who is not a lawyer] for advice. Thermitus does not belong to a legal organization. Jean Louis thought Thermitus was a lawyer but Thermitus did not hold himself out as a lawyer. According to Jean Louis, Thermitus held himself out as an immigration expert that performed other work as well. Thermitus told him he did not have to go to the hearing because he had another path to citizenship: marriage. That advice was wrong and accordingly, relying on advice from Thermitus, Jean Louis did not attend his asylum hearing. The hearing was held without him. Judge found him removable and ordered him removed [since Jean Louis had conceded that he had entered the country illegally]. Jean Louis then reached out to Thermitus. Thermitus said he worked with a lawyer who could file a motion for Jean Louis. This was little comfort to Jean Louis, who until that moment had thought that Thermitus himself was a lawyer. So Jean Louis hired a real lawyer and moved to reopen his asylum case. The immigration judge denied the motion. The Board of Immigration Appeals affirmed because no “exceptional circumstances” had prevented Jean Louis from attending his hearing. The Court of Appeals reviewed the Board’s decision not to reopen an in absentia removal order for abuse of discretion and held that the Board need reopen Jean Louis’s removal order only if “exceptional circumstances” prevented him from attending the hearing. The Court held that Jean Louis has not made that showing. To warrant reopening an in absentia removal order, exceptional circumstances must be “beyond the control of the alien.” Some of such exceptional circumstances include “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.” The statute makes it clear that other circumstances do not count if they are “less compelling” than these examples. It is important to note that exceptional circumstances must not only be extreme, but also beyond the alien’s control.
The court held that Jean Louis’s situation failed to meet this standard. Jean Louis followed bad advice from someone he trusted and his circumstances were not beyond his control. And his situation is not one of serious illness, abuse or death of the spouse, child, or parent.
Jean Louis further argued that his in absentia removal order violates his due process rights. The court held that in absentia removal orders do not categorically violate due process. Due process indeed guarantees aliens a hearing and an opportunity to be heard and present evidence. Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003). The immigration judge did not violate these rights by holding the hearing without Jean Louis. Jean Louis had an opportunity to attend his hearing, but chose not to.
This case is far from Cabrera-Perez because Jean Louis did not at all attend the hearing and the circumstances preventing him from attending his asylum hearing were not exceptional. In Cabrera-Perez, Cabrera was late for hearing and entered the Courthouse before the IJ issued her order [she had promptly notified the IJ of the reason why she was late in a handwritten motion to reopen only minutes after she found out what had happened, but the motion was denied, and the BIA affirmed] that resulted due process violation in that the alien had not received a meaningful opportunity to be heard.
It is also important to note Alarcon-Chavez v. Gonzales, 403 F.3d 343 (5th Cir.2005), the alien had been paroled into the United States upon a finding by the INS that he had a credible fear of returning to Cuba. He had timely appeared for several prior hearings with the assistance of his uncle, but when traveling alone for the first time, he missed the Corpus Christi exit during rush hour traffic, and headed in the wrong direction for a brief period. As a result, he arrived in the courthouse for an 8:30 a.m. hearing at 8:44 a.m. The IJ was still on the bench at 8:44 a.m., but by the time the alien entered the courtroom at 8:50, the IJ had declared that he had failed to appear, issued an order of removal in absentia, and exited the courtroom. The Fifth Circuit held that, as a matter of law, arriving in the courtroom twenty minutes late but during business hours, when the IJ is either still on the bench or recently retired and close by, does not constitute a failure to appear.
In Nazarova v. Immigration & Naturalization Serv., 171 F.3d 478, an alien who did not speak English was assured by court staff that an interpreter would be supplied, but when she arrived for her master calendar hearing, there was no interpreter. In anticipation of her next hearing, she hired her own interpreter. On the day she was to be in court, however, her interpreter was two hours late. She chose to wait for him rather than risk another hearing at which she would understand nothing and be unable to convey anything. When she arrived two hours past the scheduled hearing time, she discovered that an order of removal had been entered in absentia. She promptly notified the IJ of the reason why she was late in a handwritten motion to reopen only minutes after she found out what had happened, but the motion was denied, and the BIA affirmed. The Seventh Circuit found a due process violation in that the alien had not received a meaningful opportunity to be heard. The court reasoned that a non-English-speaking alien has a due process right to an interpreter, and the alien reasonably concluded under the circumstances of the confusing and contradictory actions of immigration court staff that it was her responsibility to find one. The court stated: “It violates due process to insist that Nazarova should have sacrificed her constitutional right to a meaningful opportunity to be heard so that she could stand corporeal witness-though in essence unable to hear or speak-to her own deportation.”
In Cabrera-Perez, Alarcon-Chavez v. Gonzales and Nazarova v. Immigration & Naturalization Serv., there was no failure to appear, the in absentia orders were entered in violation of claimants’ right to due process, and thus were an abuse of discretion to deny motion to reopen.
Vijay Bhagwati, Esq.
Founder and Managing Partner
