Vukmirovic v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PREDRAG VUKMIROVIC, 

Petitioner, No. 05-75936

v.

 Agency No.

A072-443-690

ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 14, 2010—San Francisco, California

Filed September 8, 2010

Before: Mary M. Schroeder and Johnnie B. Rawlinson,

Circuit Judges, and James Maxwell Moody, District Judge.*

Opinion by Judge Schroeder;

Dissent by Judge Rawlinson

*The Honorable James Maxwell Moody, Senior United States District

Judge for the Eastern District of Arkansas, sitting by designation.

13651

13654 VUKMIROVIC v. HOLDER

COUNSEL

David Gardner, Los Angeles, California, for petitioner Pre-

drag Vukmirovic.

Liza Murcia, Department of Justice, Washington, D.C., for

respondent Eric H. Holder Jr., Attorney General.

OPINION

SCHROEDER, Circuit Judge:

When this petitioner’s case was before us over six years

ago we remanded, holding that the Board of Immigration

VUKMIROVIC v. HOLDER 13655

Appeals (“BIA”) and Immigration Judge (“IJ”) had erred as

a matter of law in ruling that the petitioner was not eligible

for asylum consideration. See Vukmirovic v. Ashcroft, 362

F.3d 1247, 1253 (9th Cir. 2004) (“Vukmirovic I”). Unfortu-

nately after remand Petitioner’s newly retained counsel was

not immediately able to contact the Petitioner to file a notice

of appearance; the immigration court gave notice of the new

hearing to his old counsel who did nothing, and Vukmirovic

was ordered deported in absentia. The BIA denied reopening

even after Vukmirovic’s new counsel was able to appear and

explain the situation. We now hold that this case presents “ex-

ceptional circumstances” within the meaning of the control-

ling statute, 8 U.S.C. § 1252b(f)(2) (1994), and remand for

the asylum hearing we held Petitioner was entitled to in 2004.

BACKGROUND

This case goes back to 1991 when Pedrag Vukmirovic, a

Bosnian Serb, fled the violence in the former Yugoslavia to

come to the United States. He applied for asylum soon after

he arrived, and then in 1996 married a United States citizen.

At two subsequent deportation hearings Vukmirovic sought

continuances to allow the Immigration and Naturalization

Service (“INS”) to process his application for adjustment of

status from his marriage, but the IJ denied those requests and

proceeded to order him deported. The record does not indicate

whether he is still married.

Vukmirovic has never had a ruling on the merits of his asy-

lum application. At his 1996 asylum hearing the IJ effectively

took over the proceedings, often interrupting him to ask ques-

tions. See Vukmirovic I, 362 F.3d at 1249 (“The IJ com-

menced the hearing by conducting the examination of

Vukmirovic himself; it was only after the IJ concluded his

questioning that he allowed Vukmirovic’s counsel to begin

presenting his case. Even after Vukmirovic began presenting

his case, the IJ frequently interrupted to ask a series of ques-

tions.”). In the testimony key to our 2004 ruling, Vukmirovic

13656 VUKMIROVIC v. HOLDER

testified that in 1990, he had joined an anti-communist group,

affiliated with the Serbian Orthodox religion, whose job it

was to defend his town against the attacks of Bosnian Croats.

Bosnian Croats attacked Vukmirovic’s town on several occa-

sions, and Vukmirovic attempted to repel these attacks using

only knives and sticks.

On the basis of this testimony, the IJ determined that Vuk-

mirovic was a persecutor and statutorily barred from asylum,

see 8 U.S.C. § 1101(a)(42), never reaching the merits of his

asylum claim. The BIA issued a summary affirmance.

Attorney Steve Paek had represented Vukmirovic before

the BIA, but whenVukmirovic sought review of the IJ’s deci-

sion in this court he retained attorney David Gardner to repre-

sent him. In a published opinion, we held that the persecutor

bar did not apply because Vukmirovic was acting in self

defense. See Vukmirovic I, 362 F.3d at 1252-53. We granted

the petition for review and remanded the case to the BIA for

further proceedings. See id. at 1253.

On remand, however, due to an unfortunate and unusual

confluence of events, the subsequent proceedings ordered by

this court never occurred. The mandate in Vukmirovic I issued

on June 24, 2004, and the BIA remanded the case to the

immigration court on September 23, 2004. Although Gardner

was Vukmirovic’s counsel, because Paek had represented

Vukmirovic before the BIA, the BIA provided notice of the

remand only to Paek. See 8 C.F.R. §§ 292.5, 1003.1(f).1 The

BIA did not provide personal notice to Vukmirovic.

After retaining Gardner, Vukmirovic left his listed perma-

1

Section 1003.1 provides that service of BIA decisions “shall be served

upon the alien or party affected as provided in part 292 of this chapter.”

Section 292.5 provides such service “shall be given by or to, served by or

upon, made by, or requested of the attorney or representative of record, or

the person himself if unrepresented.”

VUKMIROVIC v. HOLDER 13657

nent residence. According to his declaration, he did not relo-

cate to a new address, but traveled and stayed for short

periods of time with friends and different roommates, and as

a result Gardner was unable to contact him. This prevented

Gardner from filing a notice of appearance before the immi-

gration court, because the notice of appearance form explic-

itly requires the alien’s consent to the entry of a representative

appearance before the immigration court. See Executive

Office for Immigration Review, Form 28 (2001) (“EOIR-28”)

(“When an appearance is made by a person acting in a repre-

sentative capacity, his/her personal appearance or signature

shall constitute a representation that . . . he/she is authorized

. . . to represent individuals.”).

When the immigration court sent notice of the asylum hear-

ing to Paek, setting a date of hearing of December 9, 2004,

it did not send notice to Vukmirovic’s home address. Paek did

not inform the immigration court that he was no longer repre-

senting Vukmirovic, and does not appear to have made any

effort to contact his former client to alert him to the new pro-

ceedings. As Gardner had not yet filed a notice of appearance,

Gardner did not know of the December 9 hearing.

When neither Vukmirovic nor anyone representing him

appeared for the December 9 hearing, the IJ set a new hearing

date of January 6, 2005, and mailed notice, again to Paek, and

also to Vukmirovic’s home address. Vukmirovic, still away,

did not receive the notice and was under the mistaken impres-

sion that Gardner would receive any correspondence related

to his case. Paek received notice of the January hearing but

again neither withdrew nor made any effort to contact Vuk-

mirovic. Gardner, still unable to file a notice of appearance,

again did not receive any notice. When no one appeared at the

January 2005 hearing, the IJ ordered Vukmirovic removed in

absentia. Contrary to the dissent’s assertions, Vukmirovic did

not disappear. He was arrested at work within a few weeks

and placed into detention.

13658 VUKMIROVIC v. HOLDER

Vukmirovic immediately contacted Gardner after the arrest.

When Gardner learned what had transpired, he quickly filed

a motion to reopen on February 4, 2005, and promptly filed

a notice of appearance, showing Vukmirovic’s consent, on

February 10, 2005.

The IJ denied the motion to reopen and ruled that the notice

to Vukmirovic’s home address satisfied due process. The IJ

also held that, even though Paek had not represented Vuk-

mirovic in his successful petition in this court, there was no

error in notifying Paek as Vukmirovic’s counsel because

Gardner had not filed a notice of appearance. On appeal, the

BIA affirmed the IJ’s due process ruling and additionally

found that Vukmirovic had not demonstrated that the absence

from his hearing was due to “exceptional circumstances”

within the meaning of the applicable statute. 8 U.S.C.

§ 1252b(f)(2) (1994); Singh v. INS, 295 F.3d 1037 (9th Cir.

2002). The BIA cited our decision in Valencia-Fragoso v.

INS, 321 F.3d 1204 (9th Cir. 2003) (per curiam), and ruled

that, as a matter of law, exceptional circumstances could not

exist because Vukmirovic was seeking discretionary relief in

the form of asylum.

DISCUSSION

Vukmirovic argues that the immigration court provided

constitutionally inadequate notice of the hearings, and that the

exceptional circumstances of his case warrant granting the

motion to reopen. We agree with Vukmirovic that this case

presents exceptional circumstances under the relevant statute

and therefore do not reach the due process question. See Lee

v. Walters, 433 F.3d 672, 677 (9th Cir. 2005) (stating that

courts should avoid reaching constitutional issues unless it is

necessary to do so).

[1] Vukmirovic is entitled to recision of his in absentia

deportation order if he demonstrates “that the failure to appear

was because of exceptional circumstances.” 8 U.S.C.

VUKMIROVIC v. HOLDER 13659

§ 1252b(c)(3)(A) (1994). The controlling statute defined “ex-

ceptional circumstances” as “circumstances (such as serious

illness of the alien or death of an immediate relative of the

alien, but not including less compelling circumstances)

beyond the control of the alien.” 8 U.S.C. § 1252b(f)(2);

recodified at 8 U.S.C. § 1229a(e)(1) (defining exceptional cir-

cumstances as “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”).2

We have said that the determination of whether “exceptional

circumstances” exist is based on the “particularized facts pres-

ented in each case,” see Singh v. INS, 295 F.3d 1037, 1040

(9th Cir. 2002) (citation omitted), and have never pointed to

a single circumstance as either qualifying or disqualifying a

situation from consideration as exceptional.

Singh is our leading case interpreting the term “exceptional

circumstances.” The petitioner in Singh had obtained several

continuances of his deportation hearing to obtain adjustment

of status due to his marriage to a United States citizen. Id. at

1038-39. After becoming facially eligible for adjustment, he

drove with his family to a deportation hearing only to learn

he was late. Id. We rejected the government’s argument that

petitioner’s tardiness did not present an exceptional circum-

stance, instead finding that the “particularized facts pres-

ented” were indeed exceptional. Id. at 1040 (citation omitted).

The petitioner was the beneficiary of an approved visa peti-

tion, would not have been deported had he been on time, and

thus “had no possible reason to try to delay the hearing.” Id.

at 1039-40. Because deportation would have led “to the

unconscionable result of deporting an individual eligible for

2

The Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, § 304(a), 110 Stat. 3009, deleted Section

1252b and recodified the definition of exceptional circumstances in essen-

tially the same form in Section 1229a(e)(1).

13660 VUKMIROVIC v. HOLDER

relief from deportation,” we found the BIA abused its discre-

tion in denying the motion to reopen. Id. at 1040.

We built upon Singh in Chete Juarez v. Ashcroft, 376 F.3d

944, 947 (9th Cir. 2004), and found exceptional circum-

stances in another “compelling factual situation.” There, the

petitioner entered the United States in 1985, but the INS did

not commence deportation proceedings until 1995. Id. at 946.

The petitioner sought suspension of deportation, arguing that

deportation would cause extreme hardship on her and her

children. Id. The IJ denied relief finding that petitioner did not

meet the requirements for suspension. Id. at 946-47. Over five

years later, the BIA reversed and remanded the case to the IJ

to reconsider petitioner’s claim. Id. at 947. The petitioner,

however, had moved while the proceedings were pending

before the BIA, and she claimed the immigration court did not

receive her change of address form. Id. She therefore missed

her hearing because the immigration court sent notice to her

old address. Id.

We found that case presented exceptional circumstances

because “[t]he hearing Petitioner missed represented the cul-

mination of years of efforts to regularize her status, and she

had no reason to try to delay the hearing” since “[s]he had

prevailed on appeal before the BIA and could finally proceed

with her request for relief.” Id. at 948. Additionally, we deter-

mined that, had petitioner appeared at her hearing, she “like-

ly” would have obtained the desired grant of suspension of

deportation. Id.

We have been careful to distinguish those cases presenting

exceptional circumstances from cases where the facts sur-

rounding a petitioner’s failure to appear were unexceptional

and ordinary. We discussed one such ordinary case in

Valencia-Fragoso v. INS, 321 F.3d 1204 (9th Cir. 2003) (per

curiam), upon which the BIA relied. There, the petitioner

received notice of her deportation hearing, but arrived late,

having lost the notice and forgotten the scheduled time. Id. at

VUKMIROVIC v. HOLDER 13661

1205. We found that the case did not present exceptional cir-

cumstances because there was nothing compelling about for-

getting what time to show up for a hearing. Id. at 1205-06.

We also distinguished Singh because the petitioner in

Valencia-Fragoso did not have an approved visa petition and

could at most have hoped for a discretionary grant of volun-

tary departure. Id.

[2] Valencia-Fragoso correctly recognized that the proba-

bility of relief is a relevant variable in determining whether

exceptional circumstances exist. The BIA in this case, how-

ever, interpreted the case as holding that a petitioner could

effectively never demonstrate that exceptional circumstances

are present so long as the petitioner is seeking a discretionary

form of relief. In so doing, the BIA erred as a matter of law

and therefore abused its discretion. Our cases have consis-

tently held that “we consider all exceptional-i.e., compelling-

circumstances relevant to a petitioner’s motion to reopen.”

See Chete Jurarez, 376 F.3d at 948; see also Singh, 295 F.3d

at 1040 (requiring courts to look to the “particularized facts

presented in each case”) (citation omitted). That the relief

sought is discretionary has never been an absolute bar. Indeed

this court has found there were exceptional circumstances

where the relief sought was discretionary. See Chete Juarez,

376 F.3d at 949 n.5 (granting motion to reopen to pursue sus-

pension of deportation); Lo v. Ashcroft, 341 F.3d 934, 935-39

(9th Cir. 2003) (granting motion to reopen to pursue cancella-

tion of removal). Thus, contrary to the BIA’s holding here,

deciding whether exceptional circumstances are present

requires a consideration of all facts in a specific case, includ-

ing but not limited to the probability of the petitioner obtain-

ing relief.

[3] The First Circuit has adopted a similar, holistic,

approach that rejects any simplistic definition of exceptional

circumstances that would exclude from the realm of extraordi-

nary any case where the relief sought is asylum. See Kaweesa

v. Gonzales, 450 F.3d 62, 68-70 (1st Cir. 2006) (determining

13662 VUKMIROVIC v. HOLDER

BIA abused discretion in denying motion to reopen where

relief sought was asylum). In Kaweesa, the court held that the

“totality of the circumstances must be considered,” and noted

that a proper inquiry into whether there are exceptional cir-

cumstances looks to the specific facts of each case. Id. at 68-

69 (looking to supporting documentary evidence, the alien’s

efforts in contacting the immigration court, the strength of an

alien’s underlying claim, the harm an alien would suffer if

removed, promptness of the motion to reopen, and inconve-

nience to the government) (citation omitted); see also In re B-

A-S-, 22 I. & N. Dec. 57, 58 (BIA 1998) (noting that “the

totality of circumstances pertaining to the alien’s case must be

considered” in determining whether exceptional circum-

stances are present) (internal quotation marks and citation

omitted). We agree with the First Circuit that the nature of

relief is not dispositive, and that we should look to the “total-

ity of the circumstances” to determine whether exceptional

circumstances are present in a given case.

[4] Applying the proper standard, we conclude that the

peculiar qualities of this case demonstrate exceptional circum-

stances. Vukmirovic applied for asylum almost two decades

ago, achieved a victory before this court in Vukmirovic I, and

still has not had his asylum claim decided under the proper

legal standard. He had no motivation to delay the hearing, as

having a fair adjudication of his asylum claim “represented

the culmination of years of efforts to” seek lawful status in

this country. See Chete Juarez, 376 F.3d at 948. Like the peti-

tioner in Chete Juarez, Vukmirovic “had prevailed on appeal

before [this court in 2004] and could finally proceed with

[his] request for relief.” See id.

[5] Neither Vukmirovic nor his attorney Gardner received

notice of the hearing because of an ironic series of events.

Vukmirovic was away from his permanent address and quite

reasonably expected that Gardner was handling all matters

related to his asylum application. Gardner, for his part, could

not file a notice of appearance before the immigration court

VUKMIROVIC v. HOLDER 13663

because he did not yet have Vukmirovic’s consent to do so.

Filing a notice of appearance in the absence of such consent

was contrary to Department of Homeland Security regulations

as incorporated by the notice of appearance form, and possi-

bly would have been an ethical violation. See Cal. Bus. &

Prof. Code § 6104 (“Corruptly or wilfully and without author-

ity appearing as attorney for a party to an action or proceeding

constitutes a cause for disbarment or suspension.”); EOIR-28

(“When an appearance is made by a person acting in a repre-

sentative capacity, his/her personal appearance or signature

shall constitute a representation that . . . he/she is authorized

and qualified to represent individuals.”). Vukmirovic’s coun-

sel cannot be faulted, as a lawyer, for adhering to regulations

and professional standards. Vukmirovic cannot be faulted as

a client for not knowing what those regulations and profes-

sional standards were.

The history of the statutory provisions shows that Con-

gress’ decision to excuse an alien’s absence only for “excep-

tional circumstances” was “in response to a serious problem

of aliens deliberately failing to appear for hearings and thus

effectively extending their stay in this country.” Kaweesa, 450

F.3d at 68. That problem was not at all present here, given

Vukmirovic’s diligent pursuit of his remedies throughout the

lengthy procedural history of this case. This history distin-

guishes Vukmirovic from those petitioners who claimed “ex-

ceptional circumstances” in ordinary situations, such as

forgetting the time of the hearing, getting stuck in traffic, or

simply not receiving the notice letter. See Valencia-Fragoso,

321 F.3d at 1205; Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.

1997) (finding no exceptional circumstances where petitioner

claimed he did not receive letter noticing hearing and pres-

ented no other facts suggesting a compelling situation);

Sharma v. INS, 89 F.3d 545, 546-48 (9th Cir. 1996) (no

exceptional circumstances where petitioner one hour late due

to traffic). There is nothing exceptional or compelling about

mere tardiness.

13664 VUKMIROVIC v. HOLDER

While the probability of relief is a relevant variable to con-

sider, see Valenica-Fragoso, 321 F.3d at 1205-06, it has little

significance here. Because Vukmirovic has never been given

a meaningful opportunity to present his asylum case, there is

no record on which to assess the strength or weakness of his

underlying claim. Moreover, as almost 20 years have passed

since he filed his asylum application, we cannot even specu-

late on the merits of his claim with any accuracy. Neither the

IJ nor the BIA has looked at the merits.

[6] The BIA may have discounted the significance of his

diligent pursuit of relief that followed the original denial of

his asylum application in 2002. The BIA looked back and

suggested that he may not have been diligent in his pursuit of

an asylum hearing because he missed a 1997 adjustment of

status interview. Why he missed that interview is not in the

record, and in any event it occurred well before our decision

in Vukmirovic I. Since then the record demonstrates prompt

action. Following his arrest — when he learned for the first

time he had been ordered deported in absentia — Vukmirovic

acted immediately to contact his lawyer, who in turn acted as

promptly as he could under the circumstances to file a duly

authorized motion to reopen and then pursue this appeal.

There has thus been no lack of diligence to detract from the

claim of exceptional circumstances. See In re B-A-S-, 22 I. &

N. Dec. at 59 (“Although diligence [in filing a motion to

reopen] is not a statutory requirement, we find that [a] lack of

diligence is a factor that undercuts [a] respondent’s claim”

that exceptional circumstances were present.).

[7] In sum we agree with Vukmirovic that “[t]his is a

highly unusual case” that compels a finding of exceptional

circumstances. See Singh, 295 F.3d at 1038. Unlike the gar-

den variety of cases where an alien asks this court to excuse

his negligent or deliberate absence from a deportation or

removal hearing, Vukmirovic did not “merely seek[ ] to delay

the inevitable.” See id. at 1039. He rather had every incentive

to attend his hearing. The BIA failed to consider the unique

VUKMIROVIC v. HOLDER 13665

qualities of this case and incorrectly held that aliens seeking

discretionary relief can never demonstrate “exceptional cir-

cumstances.” For these reasons it abused its discretion in

denying the motion to reopen. We remand this case to — at

long last— allow Vukmirovic an opportunity to present his

asylum case.

Petition for review GRANTED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent. I am in complete and total disagree-

ment with the majority’s conclusion that the facts of this case

present an extraordinary circumstance. Stripped to its essence,

the Petitioner’s story is one of an unexplained disappearance

resulting in his failure to appear at his removal proceeding.

Coupled with the Petitioner’s disappearance was his new

counsel’s failure to file a notice of appearance with the immi-

gration court, thereby eliminating the possibility of his receiv-

ing notice of the impending proceeding.

The majority characterizes these facts as “ironic.” See

Majority Opinion, p. 13662. In my view, a more accurate

description of the Petitioner’s failure to maintain contact with

his attorney and the immigration court is “derelict.” Whether

an irony or a dereliction, there is nothing extraordinary about

these facts.

I am not persuaded that either Ranjit Singh v. INS, 295 F.3d

1037, 1040 (9th Cir. 2002) or Chete Juarez v. Ashcroft, 376

F.3d 944, 947 (9th Cir. 2004) supports a remand under the

facts of this case. In Ranjit Singh, although tardy, the Peti-

tioner actually appeared at the proceeding. See Ranjit Singh,

295 F.3d at 1038-39. More importantly, as the majority

acknowledges, see Majority Opinion, p. 13659-60, the Peti-

tioner in Ranjit Singh had an approved visa petition and

13666 VUKMIROVIC v. HOLDER

would not have been deported had he appeared at the deporta-

tion proceeding. See Ranjit Singh, 295 F.3d at 1039. In con-

trast, Predrag Vukmirovic, the Petitioner in this case, did not

attend the proceeding at all. Nor was he the beneficiary of an

approved visa petition. The most Vukmirovic could hope for

was a discretionary grant of asylum. See Vukmirovic v. Ash-

croft, 362 F.3d 1247, 1249 (9th Cir. 2004). The very case

relied on by the majority and authored by the same writer

made a point of noting that no exceptional circumstances

would exist where the “only possibility of relief from deporta-

tion . . . was a discretionary grant of asylum.” Ranjit Singh,

259 F.3d at 1039-40. Vukmirovic’s circumstances bear little

resemblance to those deemed extraordinary in Ranjit Singh.

Similarly, in Chete Juarez, we determined that exceptional

circumstances existed. A major factor in the determination

was the likelihood that the Immigration Judge would have

granted Chete Juarez the relief she sought, suspension of

deportation. No parallel likelihood exists for Vukmirovic.

The majority accuses the Board of Immigration Appeals

(BIA) of interpreting Valencia-Fragoso v. INS, 321 F.3d 1204

(9th Cir. 2003) (per curiam) “as holding that a petitioner

could effectively never demonstrate that exceptional circum-

stances are present as long as the petitioner is seeking a dis-

cretionary form of relief.” Majority Opinion, p. 13661

(emphasis in the original). Not so. The BIA did nothing other

than the panel in Ranjit Singh did—consider the discretionary

relief sought as a factor that weighed against a finding that

extraordinary circumstances existed. See Ranjit Singh, 295

F.3d at 1039-40.

In sum, the majority stretches our precedent to grant relief

in this case that bears no resemblance to the facts of Ranjit

Singh or Chete Juarez. In keeping with our precedent, I would

deny Vukmirovic’s petitition. Accordingly, I respectfully dis-

sent.