M-S

Interim Decision #3369

In re M-S-, Respondent

Decided October 30, 1998

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Where an alien who did not receive oral warnings of the consequences of failing to

appear at a deportation hearing pursuant to section 242B(a) of the Immigration and

Nationality Act, 8 U.S.C. § 1252b(a) (1994), moves to reopen deportation proceedings held

in absentia under section 242B(c) of the Act in order to apply for a form of relief that was

unavailable at the time of the hearing, the rescission requirements prescribed by section

242B(c)(3) of the Act are not applicable. Instead, the motion to reopen is subject to the regu-

latory requirements set forth at 8 C.F.R. §§ 3.2(c) and 3.23(b) (1998).

(2) Where deportation proceedings held in absentia are reopened to allow for an application for

new relief, the Immigration Judge must determine in each individual case the weight to be

accorded to the alien’s explanation for failing to appear at the hearing and whether such expla-

nation is a favorable or adverse factor with respect to the ultimate discretionary determination.

William J. Anastasi, Esquire, Hartford, Connecticut, for respondent

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HOLMES, VIL-

LAGELIU, FILPPU, ROSENBERG, and GRANT, Board Members. Concurring

Opinion: GUENDELSBERGER, Board Member. Dissenting Opinion: HUR-

WITZ, Board Member, joined by VACCA, HEILMAN, COLE, MATHON, and

JONES, Board Members.

VILLAGELIU, Board Member:

The respondent appeals from the decision of an Immigration Judge dated

July 1, 1996, finding that she did not satisfy the requirements for rescinding

an in absentia deportation order prescribed by section 242B(c)(3) of the

Immigration and Nationality Act, 8 U.S.C. § 1252b(c)(3) (1994)1, and deny-

1

The provisions of section 242B were stricken from the Act by section 308(b)(6) of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L.

No. 104-208, 110 Stat. 3009-546, 3009-615 (enacted Sept. 30, 1996) (“IIRIRA”). Similar

provisions to address removal proceedings for aliens issued a Notice to Appear on or after

April 1, 1997, were added by section 304(a)(3) of the IIRIRA, 110 Stat. at 589, which creat-

ed section 240 of the Act, 8 U.S.C. § 1229a (Supp. II 1996).

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ing her motion to reopen and a request for a stay of deportation. The appeal

will be sustained, and the record will be remanded for further proceedings.

I. PROCEDURAL OVERVIEW

The respondent is a native and citizen of Ghana who entered the United

States on October 22, 1993, without a valid immigrant visa. She subse-

quently submitted an application for asylum to the Immigration and

Naturalization Service. On August 16, 1995, the Service’s asylum officer

referred the asylum application, without approving it, to an Immigration

Judge for adjudication in deportation proceedings, in accordance with 8

C.F.R. § 208.14(b)(2) (1995).

The asylum officer served the respondent with an Order to Show Cause

and Notice of Hearing (Form I-221), scheduling the respondent for a

January 17, 1996, deportation hearing. According to the Order to Show

Cause, the warnings of the consequences of failing to appear at the depor-

tation hearing were not read to the respondent, whose native language is

Twi. See sections 242B(e)(1), (5) of the Act.

On January 17, 1996, the respondent did not appear at her deportation

hearing. The Immigration Judge found the respondent deportable as

charged by clear, unequivocal, and convincing evidence under section

241(a)(1)(A) of the Act, 8 U.S.C. § 1251(a)(1)(A) (1994), as an alien

excludable at entry under section 212(a)(7)(A)(i)(I), 8 U.S.C. §

1182(a)(7)(A)(i)(I) (1994), for not having a valid immigrant visa. An in

absentia order was issued in accordance with section 242B(c)(1) of the Act,

and the respondent was ordered deported to Ghana.

On December 15, 1995, the respondent married a United States citizen,

who filed an immediate relative visa petition on her behalf on February 27,

1996. On March 4, 1996, the respondent filed a motion to reopen accom-

panied by an application for adjustment of status and supporting documen-

tation.

The respondent’s motion also addressed her failure to appear at her

January 17, 1996, hearing. The respondent averred that she was told by the

asylum officer that she would receive formal notice of her hearing in the

mail. The respondent claimed that she did not receive this formal notice,

never saw that the hearing date was indicated in the Order to Show Cause,

and failed to appear because she was unaware of the scheduled hearing. The

Immigration Judge denied the motion to reopen, finding that the respondent

did not establish the exceptional circumstances for failing to appear at her

hearing that were required to rescind the in absentia order, and that she was

not prima facie eligible to adjust her status because she did not have an

approved visa petition.

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On May 24, 1996, the respondent’s visa petition was approved.2 On

May 31, 1996, the respondent filed a new motion to reopen and requested a

stay of deportation and a change of venue from Boston, Massachusetts, to

Hartford, Connecticut. The Immigration Judge again denied this motion to

reopen, finding that the respondent had not established that she had failed

to appear at her deportation hearing on January 17, 1996, due to exception-

al circumstances. The respondent has appealed this decision of the

Immigration Judge, arguing that she is eligible for adjustment of status.

II. ISSUE PRESENTED

The issue before us is whether the exceptional circumstances require-

ments, prescribed by section 242B(c)(3) of the Act for rescission of an in

absentia deportation order, are applicable to a motion to reopen seeking

adjustment of status by an alien who did not receive the oral warnings of the

consequences of failing to appear at a deportation hearing.

III. APPLICABLE STATUTES

The statutes in question are sections 242B(c)(1),(3)(A), (e)(1), and (5)

of the Act, which read as follows:

(c) CONSEQUENCES OF FAILURE TO APPEAR.—

(1) IN GENERAL.—Any alien who, after written notice required under sub-

section (a)(2) has been provided to the alien or the alien’s counsel of record, does not

attend a proceeding under section 242, shall be ordered deported under section

242(b)(1) in absentia if the Service establishes by clear, unequivocal, and convincing

evidence that the written notice was so provided and that the alien is deportable. The

written notice by the Attorney General shall be considered sufficient for purposes of

this paragraph if provided at the most recent address provided under subsection

(a)(1)(F).

(3) RESCISSION OF ORDER.—Such an order may be rescinded only—

(A) upon a motion to reopen filed within 180 days after the date of the order

of deportation if the alien demonstrates that the failure to appear was because

of exceptional circumstances (as defined in subsection (f)(2)), or

(B) upon a motion to reopen filed at any time if the alien demonstrates that

the alien did not receive notice in accordance with subsection (a)(2) or the alien

demonstrates that the alien was in Federal or State custody and did not appear

through no fault of the alien.

The filing of the motion to reopen described in subparagraph (A) or (B) shall stay the

deportation of the alien pending disposition of the motion.

2

Pursuant to 8 C.F.R. § 245.2(a)(2)(i) (1996), the adjustment application was deemed

filed on February 27, 1996, the date when the visa petition was originally filed. See Matter

of Yodying, 17 I&N Dec. 155 (BIA 1979).

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Interim Decision #3369

(e) LIMITATION ON DISCRETIONARY RELIEF FOR FAILURE TO

APPEAR.—

(1) AT DEPORTATION PROCEEDINGS.—Any alien against whom a final

order of deportation is entered in absentia under this section and who, at the time of

the notice described in subsection (a)(2), was provided oral notice, either in the alien’s

native language or in another language the alien understands, of the time and place of

the proceedings and of the consequences under this paragraph of failing, other than

because of exceptional circumstances (as defined in subsection (f)(2)) to attend a pro-

ceeding under section 242, shall not be eligible for relief described in paragraph (5)

for a period of 5 years after the date of the entry of the final order of deportation.

(5) RELIEF COVERED.—The relief described in this paragraph is—

(A) voluntary departure under section 242(b)(1),

(B) suspension of deportation or voluntary departure under section 244, and

(C)adjustment or change of status under section 245, 248, or 249.

IV. STATUTORY ANALYSIS

The issue before us is one of statutory construction. The object of statu-

tory construction is to determine the congressional intent with respect to the

legislation enacted. If the statutory language is clear, that is the end of the

inquiry, as Immigration Judges and the Board, as well as the courts, clearly

“must give effect to the unambiguously expressed intent of Congress.”

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 843 (1984). The paramount index of congressional intent is the plain

meaning of the words used in the statute as a whole. See INS v. Cardoza-

Fonseca, 480 U.S. 421, 431 (1987); see also Matter of Grinberg, 20 I&N

Dec. 911 (BIA 1994). And, it is assumed that the legislative purpose is

expressed by the ordinary meaning of the words used. INS v. Phinpathya,

464 U.S. 183, 189 (1984). Moreover, in ascertaining the “plain meaning” of

the statute, the Board “must look to the particular statutory language at

issue, as well as the language and design of the statute as a whole.” K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).

As noted above, the language of section 242B(c)(3) of the Act states

that an in absentia deportation order may only be rescinded, for certain rea-

sons, by way of a motion to reopen. However, section 242B of the Act does

not indicate whether an in absentia order must always be rescinded before

reopening proceedings, or whether a motion to reopen may be granted with-

out first rescinding the deportation order where an alien is eligible for pre-

viously unavailable relief and seeks only adjudication of the new applica-

tion. Instead, the language of the statute merely prescribes the procedure for

rescinding an in absentia deportation order. Consequently, we start our

analysis by examining the meaning of the word “rescind” to determine

whether such rescission is an implied condition precedent to reopening

deportation proceedings for other purposes.

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According to Black’s Law Dictionary, “rescission” means to annul ab

initio. Black’s Law Dictionary 1306 (6th ed. 1990). The dictionary explains

by example that rescission of a contract is “[t]o declare a contract void in

its inception and to put an end to it as though it never were. A ‘rescission’

amounts to the unmaking of a contract, or an undoing of it from the begin-

ning, and not merely a termination . . . .” Id. (citation omitted). Thus, by the

plain meaning of the words in section 242B(c)(3) of the Act, to “rescind”

an in absentia deportation order is to annul from the beginning all of the

determinations reached in the in absentia hearing. The only reasons that will

support such rescission are exceptional circumstances which prevented the

alien from appearing, the alien’s incarceration which prevented her appear-

ance, or lack of notice of the hearing.

Once an in absentia order is rescinded, the alien is then given a new

opportunity to litigate the issues previously resolved against her at the in

absentia hearing.3 In other words, the deportation proceedings go back to

the start, the Service must proceed to prove deportability under the allega-

tions in the original Order to Show Cause, and the alien must establish any

eligibility for relief. Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996). The

alien is returned to the same status she had prior to the in absentia hearing,

namely, an alien charged with deportability and subject to the already-initi-

ated deportation proceedings.4

In contrast, proceedings may be “reopened” when a new question has

arisen that requires a hearing. Matter of Ku, 15 I&N Dec. 712 (BIA 1976);

3

At the in absentia hearing, the Service may present evidence of deportability “in like

manner as if the alien were present,” and all pending applications for relief from deportation

are deemed abandoned. Section 242(b) of the Act, 8 U.S.C. § 1252(b) (1994); see also Matter

of Nafi, 19 I&N Dec. 430, 431 (BIA 1987); Matter of Jaliawala, 14 I&N Dec. 664 (BIA

1974); cf. Wellington v. INS, 108 F.3d 631 (5th Cir. 1997) (noting that the alien failed to appear

for his deportation hearing on an application for relief after having conceded deportability).

4

An analogy to rescission of adjustment of status under section 246 of the Act, 8 U.S.C.

§ 1256 (1994), is useful here because Congress is presumed to intend identical meanings

when it uses identical words. When adjustment of status is rescinded, the alien is returned to

the status he would have if he had not obtained adjustment of status. A deportation order does

not automatically ensue, and the Service still needs to pursue the alien’s removal in deporta-

tion or removal proceedings where the alien may seek relief from deportation unavailable in

section 246 proceedings. See generally Matter of Belenzo, 17 I&N Dec. 374, 383-84 (BIA

1980, 1981; A.G. 1981); 8 C.F.R. pt. 246 (1997); cf. 8 C.F.R. § 242.17 (1997). Similarly,

rescission of an in absentia deportation order merely returns the respondent to the status he

had if the order had not been issued, i.e., an alien subject to proceedings. Also, in keeping with

the concept of annulment ab initio, the respondent’s derivative relatives in section 246 rescis-

sion proceedings lose their status upon the rescission of the principal alien’s adjustment. See

Matter of Valiyee, 14 I&N Dec. 710 (BIA 1974). In contrast, familial derivatives of a lawful

permanent resident do not lose their status if he is ordered deported and his status is termi-

nated for misconduct after his lawful admission into the United States.

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8 C.F.R. §§ 3.2(c), 3.23(b)(3) (1998). An order reopening proceedings is an

interlocutory order allowing for such a hearing and does not dispose of the

merits of the application for relief from deportation. Matter of Ku, supra, at

713; see also Matter of Pena-Diaz, 20 I&N Dec. 841 (BIA 1994). If, after

reopening, the requested relief is denied, the respondent remains subject to

the original finding of deportability and the respondent is ordered deported

from the United States. When we reopen proceedings for a purpose other

than rescission of an in absentia order, what transpired at previously con-

ducted proceedings is not necessarily abrogated.

There are also other significant differences between a motion to reopen

for purposes of rescission and a motion to reopen for other purposes. For

example, the regulations specify that once there is a final administrative

order of deportation, the district director may exercise his authority to issue

an order of deportation. See 8 C.F.R. § 243.2 (1997); see also 8 C.F.R. §

241.2(a) (1998) (relating to removal proceedings); cf. 8 C.F.R. § 242.25

(1997) (relating to expedited deportation of aggravated felons). Absent a

stay of deportation, a pending motion does not prevent the Service from

executing the deportation order except in limited circumstances. See 8

C.F.R. §§ 3.2(f), 3.23(b)(1)(v), (4)(iii)(A) (1998). A motion to reopen in

order to rescind pursuant to 8 C.F.R. § 3.23(b)(4)(iii)(A) is the only motion

to reopen for which an automatic stay of deportation ensues, see 8 C.F.R. §

3.23(b)(4)(iii)(C), further evidencing that motions to reopen in order to

rescind are different from motions to reopen for other purposes. See Matter

of Rivera, 21 I&N Dec. 232 (BIA 1996); cf. Matter of Ruiz, 20 I&N Dec.

91 (BIA 1989) (discussing differences between reopening because an in

absentia order should be set aside and reopening because other relief may

be available that requires prima facie evidence of eligibility).

In the present case, the respondent was an alien charged with deporta-

bility for having entered the United States without a valid immigrant visa

before her January 17, 1996, deportation hearing. If the January 17, 1996,

deportation order were rescinded, the finding of deportability would be

annulled and proceedings would return to the start. However, the respon-

dent’s motion does not challenge the finding of deportability. It explains

why the respondent failed to attend her January 17, 1996, hearings, but only

seeks reopening of the proceedings in order to address an entirely new ques-

tion, her eligibility for adjustment of status. The respondent does not claim

that her failure to notice that the Order to Show Cause contained a date for

her previously scheduled deportation hearing constituted exceptional cir-

cumstances for purposes of rescission pursuant to section 242B(c)(3) of the

Act. She claims, instead, that she is eligible for adjustment of status, that

such relief from deportation is warranted as a matter of discretion, and that

her deportation proceedings should be reopened so that she may establish

her eligibility for such relief.

We agree with the respondent’s contention that she may establish her

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Interim Decision #3369

eligibility for adjustment of status at reopened deportation proceedings. We

find that the requirements for rescission of an in absentia order are inappli-

cable to a motion to reopen that does not seek rescission of that order.

Where the respondent only seeks reopening for relief from deportation

without challenging the finding of deportability, the applicable section of

the Act is section 242B(e)(1), which identifies the aliens precluded from

obtaining certain forms of relief from deportation. This section specifies

that if an alien fails to appear at a deportation hearing after receiving oral

notice, in a language the alien understands, of the consequences of failing

to appear, the alien is ineligible for 5 years for the forms of relief from

deportation listed in section 242B(e)(5) of the Act. Conversely, if the oral

warnings are not provided, relief is not precluded. To rule otherwise would

render surplusage the requirement of section 242B(e)(1) that the oral warn-

ings be given before the consequences ensue.

Section 242B(c)(3) of the Act, which only addresses the procedure for

rescinding in absentia orders of deportation, cannot be read to negate the

section 242B(e)(1) oral warnings requirement by implication. Any ambigu-

ities in the language of section 242B(c)(3) that may imply that rescission of

an in absentia order is a condition precedent to reopening an in absentia

deportation order are removed by looking at the language of section

242B(e)(1), which specifically addresses the preclusive effect of in absen-

tia deportation orders upon future applications for relief from deportation.

The language of section 242B(e)(1) of the Act, requiring oral warnings of

the consequences for failing to appear before precluding relief from depor-

tation, is clear. Without reopening deportation proceedings, there is no

forum available for an alien who has been served with an Order to Show

Cause to apply for voluntary departure, suspension of deportation, or

adjustment of status.

It is a well-settled rule of statutory construction that an entire statute

must be read together because no part of it is superior to any other part, and

therefore, if the meaning of a particular phrase or section is clear, no other

part of the statute may be applied to create doubt. 2A N. Singer, Sutherland

Statutory Construction (4th. ed. 1985); accord United States v. Batchelder,

581 F.2d 626 (7th Cir. 1978); Preterm, Inc. v. Dukakis, 591 F.2d 121 (lst Cir.

1979). “A provision that may seem ambiguous in isolation is often clarified

by the remainder of the statutory scheme . . . because only one of the per-

missible meanings produces a substantive effect that is compatible with the

rest of the law.” United Sav. Ass’n v. Timbers of Inwood Forest, 484 U.S.

365, 371 (1988) (citations omitted); Pilot Life Ins. Co. v. Dedeaux, 481 U.S.

41, 54 (1987); Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S.

609, 631-62 (1973); Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307-08

(1961). We should not interpret the rescission provisions of section 242B(c)

of the Act in such a way that they render the oral warnings language of sec-

tion 242B(e)(1) surplusage. See Kungys v. United States, 485 U.S. 759

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Interim Decision #3369

(1988); Colautti v. Franklin, 439 U.S. 379 (1979); Jarecki v. G.D. Searle &

Co., supra.

Applying the rule of statutory construction, expressio unius est exclu-

sio alterius, to the statutory language, we conclude that rescission under

section 242B(c)(3) of the Act, based on the limited circumstances listed

therein, should not be implied as an additional limitation upon reopening

for other purposes when section 242B(e)(1) of the Act expressly requires

that oral warnings under section 242B(a) of the Act be given before preclu-

sion of relief. When read in its entirety, the language of section 242B

impliedly excludes in absentia orders without such oral warnings from its

prescribed preclusion. See Matter of Lazarte, 21 I&N Dec. 214 (BIA 1996);

Singer, supra, § 47.23, at 194. The Decision rules of statutory construction

require that the whole statute be given effect to avoid absurd results. Singer,

supra, §§ 46.05, 46.06, 46.07, at 90, 104, 110. It would be absurd to pre-

clude reopening by inference under section 242B(c)(3) of the Act where an

alien is not precluded from relief under the express language of section

242B(e)(1) for the same conduct. Our finding is further supported by the

holding of the United States Court of Appeals for the Ninth Circuit in

Lahmidi v. INS, 149 F.3d 1011 (9th Cir. 1998), In that case, the court con-

cluded that “subsections (a), (c), and (e) [of section 242B of the Act] must

be read together, that the provisions are inextricably intertwined, and that

the sanctions set forth in subsections (c) and (e) cannot be imposed unless

the alien receives the procedural [notice] protections provided in subsection

(a).” Id. at 1015.

A limited interpretation of section 242B(c)(1) of the Act would also be

consistent with the language of the newly amended statute at sections

240(b)(5)(C) and (7) of the Act, 8 U.S.C. §§ 1229a(b)(5)(C) and (7) (Supp.

II 1996), which retain the dichotomy in results between in absentia orders

issued with or without such oral warnings. If Congress had intended that an

alien ordered deported in absentia without oral warnings must nonetheless

establish either exceptional circumstances, incarceration, or lack of notice

for failing to appear before applying for new relief, it would not have

repeated in a subsequent similar statute that in order to preclude relief the

alien must receive oral notice that she may be barred from such relief.

V. APPLICATION OF FACTS TO LAW

Upon our review of the record and the respondent’s motion, we find

that the respondent is entitled to a hearing on her application for adjustment

of status. The respondent is not seeking, pursuant to section 242B(c)(3) of

the Act, to rescind the order of deportation that was entered in her absence.

Thus, the requirements for rescission are not applicable. Rather, the respon-

dent is asking that her case be reopened so that she may apply for a form of

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Interim Decision #3369

relief which was unavailable to her at the time of her hearing. The respon-

dent’s motion to reopen on this basis is subject to the regulatory require-

ments at 8 C.F.R. §§ 3.2(c) and 3.23(b), See also Matter of Gutierrez, 21

I&N Dec. 479 (BIA 1996); Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).

Further, where an alien is seeking previously unavailable relief and has not

had an opportunity to present her application before the Immigration Judge,

the Board will look to whether the alien has proffered sufficient evidence to

indicate that there is a reasonable likelihood of success on the merits so as

to make it worthwhile to develop the issues further at a full evidentiary

hearing. See Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996).

In the present case, we find that the respondent has met the general

motions requirements and has provided sufficient evidence to indicate a rea-

sonable likelihood that her application may succeed on the merits. In par-

ticular, she has presented an approved visa petition as the spouse of a

United States citizen, an application for adjustment of status, and other doc-

umentary evidence. The approved visa petition was unavailable when the

Immigration Judge ordered the respondent deported in absentia on January

17, 1996, because it was only approved on May 24, 1996. Thus, the respon-

dent has not only proffered sufficient evidence regarding her statutory eli-

gibility for adjustment of status, but she has also presented new and previ-

ously unavailable information to demonstrate that reopening is warranted.

Given our disposition of this case, we need not determine at this time

whether the respondent’s reasons for her failure to attend her original depor-

tation hearing would justify the denial of relief as a matter of discretion. The

Immigration Judge must determine in each individual case the weight to be

accorded to the respondent’s explanation for failing to appear and whether

such explanation is a favorable or adverse factor with respect to the ultimate

discretionary determination. See INS v. Doherty, 502 U.S. 314 (1992); INS

v. Rios-Pineda, 471 U.S. 444 (1985); INS v. Phinpathya, supra; INS v.

Wang, 450 U.S. 139 (1981); Matter of Edwards, 20 I&N Dec. 191 (BIA

1990); cf. Matter of Barocio, 19 I&N Dec. 255 (BIA 1985) (discussing

deliberate flouting of immigration laws as a serious adverse factor in dis-

cretionary determinations). Accordingly, we will sustain the respondent’s

appeal and grant her motion to reopen so that she may apply for adjustment

of status.5

ORDER: The respondent’s appeal is sustained.

FURTHER ORDER: The deportation proceedings are

reopened, and the record is remanded to the Immigration Court for further

proceedings consistent with this opinion.

5

The respondent is free to renew her motion to change venue before the Immigration

Court, without prejudice.

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Board Member Lori L. Scialabba did not participate in the decision in this

case.

CONCURRING OPINION: John Guendelsberger, Board Member

I respectfully concur.

I fully concur in the majority’s opinion in this case. I write separately

to briefly address the dissent’s assertion that “[s]ection 242B(c)(3) of the

Act clearly states that where an in absentia order of deportation has been

issued against an alien, the only relief available is to ‘rescind’ that order.”

The section contains no such statement. Section 242B(c)(3) of the

Immigration and Naturalization Act, 8 U.S.C. § 1252b(c)(3) (1994), instead

prescribes the exclusive method for rescinding such an order upon a motion

to reopen in order to rescind. As the majority explains, rescission and

reopening are words with different meanings, and legislative purpose is

derived from the plain meaning of the words used in the statute as a whole.

An order reopening proceedings is an interlocutory order prescribing a

hearing because a new question must be resolved. See Matter of Ku, 15 I&N

Dec. 712 (BIA 1976); 8 C.F.R. §§ 3.2(c), 3.23(b)(3) (1998). An order to

rescind, by contrast, is a substantive determination to annul ab initio.

Black’s Law Dictionary 1306 (6th ed. 1990). To allow reopening of pro-

ceedings following the issuance of an in absentia order where rescission is

not required by the statute does not contravene congressional intent,

because the totality of the circumstances of the failure to appear may still

be considered in the exercise of discretion for purposes of both reopening

and adjudicating the underlying application for relief sought. Rescission

requires a narrower inquiry as to whether exceptional circumstances exist-

ed for the failure to appear.

DISSENTING OPINION: Gerald S. Hurwitz, Board Member, in which

Fred W. Vacca, Michael J. Heilman, Patricia A. Cole, Lauren R. Mathon,

and Philemina M. Jones, Board Members, joined

I respectfully dissent.

The question now before the Board is whether an alien who failed to

appear at her deportation hearing and was ordered deported in absentia

under section 242B(c)(1) of the Immigration and Nationality Act, 8 U.S.C.

§ 1252b(c)(1) (1994), could have her deportation proceedings reopened

without first being granted a rescission of the in absentia deportation order

pursuant to section 242B(c)(3) of the Act. For the following reasons, I

would find that such an alien must first have the deportation order rescind-

ed before her deportation proceedings can be reopened.

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I. CONGRESSIONAL INTENT

The majority states in its opinion that section 242B of the Act does not

clearly indicate whether an in absentia deportation order must always be

rescinded before reopening deportation proceedings. The majority also

states that we must look at Congress’ intent in enacting this section of the

Act to provide a reasonable interpretation and to resolve the issue at hand.

However, the majority focuses on the use of the word “rescission” in the

Act, and ignores the legislative history and the language of the Act as a

whole. By doing so, the majority’s opinion does not properly reflect the

intent of Congress in enacting section 242B. The majority opinion effec-

tively nullifies the strict 242B rescission provisions of the Act in the vast

majority of motions to reopen.

It is obvious from the language of the Act that Congress was concerned

with the aliens who failed to appear at their deportation hearings. Before the

addition of section 242B to the Immigration and Nationality Act in 1990,

Pub. L. No. 101-649, l04 Stat. 4978, which revised the procedures to be fol-

lowed in deportation hearings. Congress asked the United States General

Accounting Office (“GAO”) to examine the procedures used at the time to

deport and exclude aliens from the United States. In 1989, the GAO report-

ed its findings to the Subcommittee on Immigration, Refugees, and

International Law of the House Committee on the Judiciary. United States

General Accounting Office, GAO/GDD-90-18, Immigration Control:

Deporting and Excluding Aliens From the United States (Oct. 1989) [here-

inafter GAO Report].

In its report, the GAO estimated that in 1987 about 27 percent of the

aliens apprehended and placed in deportation proceedings in New York and

Los Angeles failed to appear for their hearings. Their nonappearance was

due in part to the general lack of repercussions for failing to appear. GAO

Report, supra, at 3. Before Congress passed the Immigration Act of 1990,

aliens who did not appear at their deportation hearings suffered no conse-

quences. In fact, when aliens failed to appear, Immigration Judges often

closed the aliens’ cases, thereby allowing them to avoid deportation and

profit from the delay in the deportation process to qualify for additional

forms of relief.

Consequently, the GAO Report recommended, inter alia, that aliens in

deportation proceedings be informed of their obligations to report for their

hearings and of the possible consequences of their failure to appear, such as

being ordered deported in absentia. GAO Report, supra, at 35. In addition, it

recommended that aliens who failed to appear at a scheduled hearing for

which they received proper notice be precluded from using the Immigration

and Nationality Act’s existing relief provisions. GAO Report, supra, at 52-53.

By adding the provisions contained in section 242B to the Immigration

and Nationality Act, Congress clearly intended to target the type of indi-

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viduals who had been violating the immigration laws without fear of suf-

fering any consequences. The House report on the Immigration Act of 1990

explains the legislative purpose behind the new deportation provisions

added to the Immigration and Nationality Act: “The Conference substitute

includes several enforcement provisions designed to . . . ensure that aliens

properly notified of impending deportation proceedings, or other proceed-

ings, in fact appear for such proceedings.” H.R. Conf. Rep. No. 101-955,

at 132 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6797. This statement

makes clear that Congress’ paramount objective in enacting section 242B

was to force aliens to attend their hearings. On the House floor,

Representative Smith stated that the bill “will establish deadlines for filing

appeals and help immigration judges hold in absentia hearings when aliens

fail to appear.” 136 Cong. Rec. H12,360 (daily ed. Oct. 27, 1990) (state-

ment of Representative Lamar Smith).

Immigration Judges, who may have been reluctant to conduct in absen-

tia hearings for fear of ordering aliens deported who may not have received

notice, could now depend on these new provisions. By placing conse-

quences on a failure to appear at a deportation hearing. Congress expected

that aliens would take their scheduled appointments more seriously and

bring these proceedings to a close.

The congressional scheme is based on the expectation that the alien

placed in deportation proceedings will appear at her hearings. There was

also an expectation that the alien would leave the United States after she had

been ordered deported. Congress intended to dissuade aliens from not

appearing at their deportation hearings and to bring finality to deportation

proceedings. It follows then that, even where new relief becomes available,

an alien with an in absentia deportation order should not be able to benefit

from this relief because she has unlawfully remained in the country.

In accordance with congressional intent, the courts and this Board have

generally disfavored motions to reopen a final deportation order. Matter of

Shaar, 21 I&N Dec. 541 (BIA 1996). The Supreme Court has held that

“[m]otions for reopening of immigration proceedings are disfavored for the

same reasons as are petitions for rehearing and motions for a new trial on

the basis of newly discovered evidence. This is especially true in a deporta-

tion proceeding, where, as a general matter, every delay works to the advan-

tage of the deportable alien who wishes merely to remain in the United

States.” INS v. Doherty, 502 U.S. 314, 323 (1992) (citations omitted); see

also Matter of Shaar, supra, at 547; Matter of Coelho, 20 I&N Dec. 464,

472 (BIA 1992).

In interpreting the provisions of the statute, we must therefore bear in

mind Congress’ clear intent in enacting section 242B of the Act: (1) to

ensure that aliens appear for their deportation hearings, (2) to bring finality

to these proceedings, and (3) to prevent those individuals who ignore the

immigration laws from benefitting from their unlawful status in this coun-

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try. The majority opinion’s reading of the statute, allowing an alien who has

been ordered deported in absentia to have her deportation proceedings

reopened through section 242B(e)(1) of the Act without first obtaining a

rescission of the in absentia order through one of the three provisions listed

in section 242B(c)(3) of the Act, fails to consider Congress’ intent in its

interpretation of the statute.

II. LACK OF DISTINCTION BETWEEN MOTION

TO REOPENAND MOTION TO RESCIND

The majority reaches its conclusion by attempting to distinguish

motions to rescind from motions to reopen, but the arguments presented are

not persuasive. Section 242B(c)(3) of the Act clearly states that where an in

absentia order of deportation has been issued against an alien, the only

relief available is to “rescind” that order. This is accomplished by filing a

motion to reopen where an alien can establish that she did not get notice of

her deportation proceedings, or was in custody and unable to appear

through no fault of her own, or was prevented from appearing due to excep-

tional circumstances. See Matter of W-F-, 21 I&N Dec. 503 (BIA 1996)

(holding that where an in absentia hearing results in an order of deportation,

an alien seeking to challenge the entry of the in absentia order can only do

so by the filing of a motion to reopen with the Immigration Judge); Matter

of Gonzalez-Lopez, 20 I&N Dec. 644 (BIA 1993) (finding that a motion to

reopen before an Immigration Judge is the exclusive method of reviewing

and rescinding an in absentia order). When a deportation order is rescind-

ed, the alien is given an opportunity to pursue her applications for relief

from deportation, and a new order is entered.

Similarly, where an alien moves to reopen her deportation proceedings,

she is effectively asking that the previous decision ordering her deported be

set aside so that she may present new evidence to support an application for

relief from deportation. See 8 C.F.R. §§ 3.2(c), 3.23(b)(3) (1998). Both a

rescission of the deportation order and the reopening of the case result in the

voiding of her previous order of deportation. In either situation a new order

must be entered based on the evidence presented in the reopened proceedings.

It is also important to note that 8 C.F.R. § 3.23(b)(4)(iii)(A)(1) (1998)

provides that a motion to reopen deportation proceedings to rescind an

order of deportation entered in absentia must be filed within 180 days after

the date of the deportation order if the alien demonstrates that her failure to

appear at the hearing was because of exceptional circumstances. The

motion to reopen can be filed at any time if the alien demonstrates that she

did not receive notice of her hearing in accordance with section 242B(a)(2)

of the Act. 8 C.F.R. § 3.23(b)(4)(iii)(A)(2). Because 8 C.F.R. §

3.23(b)(4)(iii)(A) contains language which mirrors the provisions of section

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242B(c)(3) of the Act, I find that in order to reopen proceedings under 8

C.F.R. §§ 3.2 and 3.23, an alien must first meet the provisions of section

242B(c)(3) of the Act.

Because reopening and rescission render the identical result of voiding the

previous order of deportation, where an alien is unable to rescind an in absen-

tia deportation order through one of the provisions of section 242B(c)(3) of the

Act, the section 242B bar to reopening must apply. See Matter of Gonzalez-

Lopez, supra. An alien is therefore ineligible to reopen her deportation pro-

ceedings if her in absentia deportation order is not first rescinded.

III. PURPOSE OF SECTION 242B(e) OF THE ACT

Further, I find that an alien cannot use the provisions of section 242B(e)

of the Act to assist in her attempt to reopen her deportation proceedings.

These provisions are not ameliorative; they are additional punitive meas-

ures. They serve as additional bars to relief, and may not be used as a way

to give an alien the opportunity to apply for relief in further proceedings

when she is unable to have her in absentia deportation order rescinded.

Section 242B(e)(1) of the Act provides that where an alien received

notice of the consequences of failing to attend a deportation proceeding and

subsequently has a final order of deportation entered against her in absen-

tia, the alien will not be eligible for certain forms of relief, including adjust-

ment of status under section 245 of the Act, 8 U.S.C. § 1255 (1994), for a

period of 5 years after the date of entry of the final order of deportation.

This section does not provide for relief from deportation through a motion

to reopen, as the majority proposes. On the contrary, section 242B(e)(1) of

the Act only limits the relief available to an alien who fails to appear at a

scheduled hearing and is subsequently ordered deported in absentia.

In contrast, the provisions of section 242B(c) of the Act do provide

relief from an in absentia order of deportation through a motion to reopen

to rescind. If Congress had intended for the provisions of section

242B(e)(1) of the Act to be ameliorative instead of punitive, it would have

added language to direct an alien to seek that type of relief. This additional

bar to relief is a clear indicator of Congress’ intent to bring finality to the

deportation proceedings of aliens, particularly those who disregard notices

and warnings. To allow reopening where Congress has clearly not provided

that remedy violates the intention of both sections of the Act.

IV. APPLICATION OF FACTS TO LAW

In applying the facts of the instant case to the law as outlined above, I

find that the respondent has failed to establish a valid reason to rescind and

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reopen her deportation proceedings. The respondent has admitted that she

personally received an Order to Show Cause from an asylum officer on

August 16, 1995. The Order to Show Cause clearly indicated on page 3 that

the respondent’s deportation hearing was scheduled for January 17, 1996.

The respondent received proper notice of the time and place of her depor-

tation proceeding through the personal service of the Order to Show Cause.

Therefore, the notice requirements under section 242B(a)(2) of the Act have

been met. See generally Matter of Gonzalez-Lopez, supra.

Having determined that the respondent received proper notice of her

deportation hearing through the Order to Show Cause, the Immigration

Judge properly conducted the hearing in absentia. See 8 C.F.R. § 3.26(b)

(1996); cf. Matter of Nafi, 19 I&N Dec. 430 (BIA 1987) (finding that where

an applicant for admission has notice of his exclusion hearing and fails to

appear, the Immigration Judge may, in his discretion, find that the applicant

has failed to establish his admissibility and has abandoned any applications

for relief from exclusion, and may order him excluded and deported).

Under section 242B(c)(3) of the Act, an in absentia order of deportation

may be rescinded only upon a motion to reopen filed within 180 days after

the date of the order of deportation if the alien demonstrates that her failure

to appear was due to exceptional circumstances, or upon a motion to reopen

filed at any time if the alien demonstrates that she did not receive notice of

the hearing or that she was in Federal or State custody.6 The statute does

not provide for any other way to rescind an in absentia order of deportation.

The respondent’s excuse for failing to appear at her hearing does not

come close to establishing exceptional circumstances. See Matter of W-F-,

supra (finding that an alien’s failure to appear for his deportation hearing

because he was on a fishing vessel for employment reasons does not rise to

the level of exceptional circumstances as set forth in the Act); H.R. Conf.

Rep. No. 101-955, at 132 (1990), reprinted in 1990 U.S.C.C.A.N. 6784,

6797 (“[T]he conferees expect that in determining whether an alien’s fail-

ure to appear was justifiable the Attorney General will look at the totality of

the circumstances to determine whether the alien could not reasonably have

been expected to appear.”)

The respondent did not attend her deportation hearing because she was

allegedly informed that a formal notice would be mailed to her.

Nevertheless, the respondent was personally provided a copy of her Order

to Show Cause, in which it was clearly indicated that she was scheduled to

appear at her hearing on January 17, 1996. There was no requirement or

6

The respondent does not assert that she failed to appear at her deportation hearing

because she did not receive notice of her deportation hearing or because she was in Federal

or State custody. Therefore, I do not address these means of rescinding a deportation order

issued in absentia.

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reasonable expectation that a further “formal notice” would excuse her from

her responsibility to appear at that hearing. The respondent’s situation has

not been shown to be “exceptional,” or in any way beyond her control.

Under a totality of the circumstances, it was reasonable to expect the

respondent in the present case to appear at her deportation hearing.

The respondent did not provide any valid reason for not appearing at

her deportation hearing. She received proper notice of her hearing through

the Order to Show Cause and she did not establish exceptional circum-

stances for failing to attend the hearing. I find that she is statutorily barred

from rescinding her in absentia order of deportation under section

242B(c)(3) of the Act. Consequently, the respondent is unable to reopen her

deportation proceedings, and the Immigration Judge properly denied her

motion to reopen. Furthermore, because section 242B(e)(1) of the Act cre-

ates an additional barrier and does not ameliorate the rescission provisions

of section 242B(c) of the Act, I find that the respondent is unable to use this

provision to have her deportation proceedings reopened.

V. CONCLUSION

In view of the legislative history preceding the enactment of section

242B and the language used, both of which provide guidance as to con-

gressional intent. I conclude that an alien, who fails to appear at her depor-

tation hearing and is subsequently ordered deported in absentia under sec-

tion 242B(c)(1) of the Act, can only reopen her deportation proceedings if

her in absentia order is rescinded through one of the three provisions of sec-

tion 242B(c)(3) of the Act. I disagree with the majority’s view that the pro-

ceedings can be reopened for subsequent relief through a motion to reopen

absent a rescission of the original in absentia deportation order. The major-

ity’s interpretation essentially eliminates the need to comply with the strict

requirements set forth in section 242B in the vast majority of motions to

reopen made subsequent to the entry of an absentia order. This reasoning is

not consistent with congressional intent.

I would find that the respondent in the present case is precluded from

reopening her deportation proceedings because she has failed to establish

exceptional circumstances and is unable to rescind her in absentia deporta-

tion order. I would also affirm the Immigration Judge’s decision denying the

respondent’s motion to reopen her deportation proceedings held in absentia.

Accordingly, I would dismiss the respondent’s appeal.

364