W-F

Interim Decision #3288

Interim Decision #3288

In re W-F-, Respondent

Decided June 18, 1996

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The provisions of section 242B of the Immigration and Nationality Act, 8 U.S.C. § 1252b

(1994), apply any time an alien, whose presence has not been excused by the Immigration

Judge, fails to appear for a deportation hearing after proper notice has been issued pursuant

to section 242B, regardless of whether the issue of deportability has already been addressed

or resolved and regardless of whether the alien has someone else appear on his behalf.

(2) An Immigration Judge retains the authority to properly excuse an alien’s presence at a

hearing, to grant a continuance, or to change venue for good cause shown by the alien or the

Immigration and Naturalization Service either prior to or at the time of the deportation

hearing.

(3) If an alien’s presence at a deportation hearing has not been excused, and any request for a

rescheduling of the hearing has not been granted, the provisions of section 242B apply and a

challenge to the entry of an in absentia deportation order based on the alien’s failure to

appear is governed by the “rescission” provisions of section 242B(c)(3) of the Act.

FOR RESPONDENT: Grosvenor Anschel, Esquire, Bellevue, Washington

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,

HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, and

GUENDELSBERGER, Board Members. Concurring and Dissenting Opinion: ROSENBERG,

Board Member.

HOLMES, Board Member:

In a decision dated November 24, 1995, an Immigration Judge denied the

respondent’s motion to reopen his deportation proceedings based on a find-

ing that the respondent had failed to show “exceptional circumstances” for

his failure to appear at a deportation hearing held on September 23, 1994. See

section 242B(c)(3) of the Immigration and Nationality Act, 8 U.S.C.

§ 1252b(c)(3) (1994). On November 28, 1995, the Immigration Judge certi-

fied his decision to this Board for review pursuant to regulations at 8 C.F.R.

§§ 3.1(c), 242.8 (1995).1 The decision of the Immigration Judge is affirmed

1 We note that on or about December 7, 1995, the parties were advised by the Immigration

Court that they could submit additional briefs to the Board. None have been submitted,

although on February 13, 1996, the Board did grant the respondent a temporary stay of

deportation pending review of the decision of the Immigration Judge.

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insofar as it denied the respondent’s motion to reopen the deportation

proceedings.

I. BACKGROUND

The respondent is a 32-year-old native and citizen of Poland. On October

24, 1993, the Immigration and Naturalization Service issued an Order to

Show Cause and Notice of Hearing (Form I-221) which charged him

with deportability under section 241(a)(1)(B) of the Act, 8 U.S.C.

§ 1251(a)(1)(B)(Supp. V 1993). The Service alleged that the respondent

entered the United States without inspection on or about March 2, 1991. On

March 21, 1994, the Immigration Court issued notice that the respondent

should appear for a hearing on June 23, 1994.

The respondent was absent on June 23, 1994, but an attorney appeared on

his behalf. Counsel acknowledged proper service of the Order to Show

Cause, conceded deportability on the respondent’s behalf, and indicated the

respondent’s desire to have an application for relief from deportation consid-

ered. Counsel explained that the respondent was at sea working on a fishing

vessel and requested a continuance of the hearing. The Immigration Judge

continued the proceedings until September 23, 1994. Both written and oral

notices were provided for the hearing date and the Immigration Judge

expressly warned counsel that further continuances would not be granted on

the basis of the respondent’s employment.

The respondent failed to appear for the deportation hearing on September

23, 1994. Once again, his counsel was present. Counsel did not contest the

adequacy of the notice of hearing. While no request for a continuance had

been filed before the hearing date, he requested a further continuance of the

proceedings because the respondent was still working. He provided a letter

from the respondent’s employer stating that it was “impossible” to get the

respondent to disembark “at this time.” The letter was dated September 22,

1994.

The Immigration Judge ultimately denied the request for a continuance.

His denial was based on a consideration of the reasons for the request, on its

timing, and on his previous admonitions. The Immigration Judge concluded

the proceedings by entering an “Order Based on Abandonment.” He found

that the deportation charge had been adequately established, and that the

respondent had abandoned any potential applications for relief due to his fail-

ure to appear. However, he did grant the respondent the privilege of volun-

tary departure under section 244(e) of the Act, 8 U.S.C. § 1254(e) (1994). He

notified the respondent that any appeal would be due by October 3, 1994.

The respondent subsequently filed a timely Notice of Appeal (Form

EOIR-26) before the Board. He argued that his request for a continuance

should have been granted, and that it was reasonable considering the nature

of his employment.

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Interim Decision #3288

In a decision dated October 23, 1995, we found that we lacked jurisdiction

over the appeal in view of the provisions of section 242B of the Act. We

noted that section 242B(c)(3) of the Act provides that an order issued after a

hearing held in absentia under section 242B can only be rescinded upon the

filing of a motion to reopen with the Immigration Judge. See Matter of Gon-

zalez-Lopez, 20 I&N Dec. 644 (BIA 1993). Because the respondent had been

instructed to file an appeal and because, inter alia, of the 180-day filing

requirement of section 242B(c)(3)(A), we construed the appeal as a motion to

reopen and returned it to the Immigration Judge for adjudication.

II. THE IMMIGRATION JUDGE’S DECISION AND

CERTIFICATION

On November 24, 1995, the Immigration Judge issued his decision. He

initially questioned the Board’s decision to remand the case under section

242B of the Act as opposed to conducting a review on direct appeal. How-

ever, upon employing section 242B of the Act, the Immigration Judge con-

cluded that the respondent’s economic pursuits did not constitute the

“exceptional circumstances” which would be necessary to excuse his failure

to appear. See sections 242B(c)(3)(A), (f)(2) of the Act. In the alternative, the

Immigration Judge found that the respondent did not present “good cause”

for a continuance, and that his failure to appear constituted an abandonment

of his application for relief from deportation.

On November 28, 1995, the Immigration Judge certified his decision to

this Board. In his decision, the Immigration Judge raised the issue of whether

section 242B of the Act should be applied to the respondent’s case, where

deportability had been resolved, the alien failed to appear for a subsequent

hearing scheduled to consider applications for relief, but counsel had been

present to request a continuance. The Immigration Judge in particular noted

three reasons, further discussed below, weighing in favor of treating such

cases as being outside the scope of section 242B of the Act. He indicated his

view that Immigration Judges had reached different conclusions regarding

the issues presented in this case and that the Board’s guidance on this matter

would be valuable. We agree with the Immigration Judge that this is a matter

that requires clarification and uniform application.

Upon consideration, we find that the provisions of section 242B of the Act

do apply any time an alien, whose presence has not been excused by the

Immigration Judge, fails to appear for a deportation hearing after proper

notice pursuant to the requirements of sections 242B(a)(2) and (c) of the Act.

The provisions of section 242B(c) apply regardless of whether the issue of

deportability already has been addressed or resolved and regardless of

whether the alien has someone else appear on his behalf, unless the alien’s

attendance has been properly excused by the Immigration Judge.

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III. SECTION 242B OF THE ACT

Section 242B of the Act was added by the Immigration Act of 1990, Pub.

L. No. 101-649, 104 Stat. 4978. See generally Matter of Gonzalez-Lopez,

supra, at 645.2 This section provides, inter alia, notice requirements for

Orders to Show Cause and hearing notices, and it addresses the consequences

of an alien’s failure to appear for a scheduled deportation hearing. See gener-

ally Matter of Grijalva, 21 I&N Dec. 27, 30-31 (BIA 1995). Section

242B(c)(1) of the Act sets forth the specific conditions under which a hearing

will be held in absentia. It states in pertinent part:

Any alien who, after written notice required under subsection (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. (Emphasis added.)

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

construction is to determine the congressional intent with respect to the legis-

lation 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 ordi-

nary 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).

Section 242B(c)(1) of the Act addresses the failure of an alien to attend

“a” properly scheduled proceeding. It draws no distinctions between hear-

ings which are held before or after deportation charges have been addressed

or resolved. Thus, we find the plain meaning of the language of the statute

answers the principal question before us.3 Regardless of the stage of the

deportation proceedings, if the alien fails to appear at a properly scheduled

hearing and his or her attendance has not been excused by the Immigration

Judge, the provisions of section 242B(c) of the Act will apply.

2 Section 242B of the Act applies to a deportation hearing where notice of the scheduled

hearing date is issued on or after June 13, 1992. See Matter of Gonzalez-Lopez, supra.

3 This is consistent with the recognition that determinations of deportability and those

regarding relief from deportation are part of one single deportation proceeding. See Foti v. INS,

375 U.S. 217 (1963).

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Moreover, we note that this conclusion is consistent with the overall statu-

tory scheme of section 242B of the Act. For example, the notice provisions of

this section do not differentiate between hearings which address deportation

charges and those which address applications for relief from deportation. See

section 242B(a)(2) of the Act; see also section 242(b) of the Act, 8 U.S.C.

§ 1252(b) (1994); Matter of Grijalva, supra; 8 C.F.R. § 3.26 (1995); cf. sec-

tion 242B(e)(4) (specifically addressing consequences of a failure to appear

for an asylum hearing after proper notice). We consider also that this reading

of the statute provides a uniform standard for review of every unauthorized

failure to appear for a properly scheduled deportation hearing before an

Immigration Judge. Indeed, it would make little sense to conclude that Con-

gress was solely concerned with one stage in the hearing process, rather than

the entirety of the deportation proceedings before an Immigration Judge.4

We therefore hold that when a respondent fails to appear for any stage of a

deportation proceeding after receiving proper notice pursuant to the provi-

sions of sections 242B(a) and (c) of the Act and his or her presence has not

been excused by the Immigration Judge, the provisions of section 242B of

the Act are applicable.5 Where the in absentia hearing results in an order of

deportation, an alien seeking to challenge the entry of the in absentia order of

deportation can only do so by the filing of a motion to reopen with the Immi-

gration Judge pursuant to the provisions of section 242B(c)(3) of the Act. See

Matter of Gonzalez-Lopez, supra. The alien must then establish that “excep-

tional circumstances” existed for the absence, unless a notice or custody issue

was involved. See section 242B(c)(3) of the Act; see also Matter of Grijalva,

supra.

The Immigration Judge on certification expressed three principal con-

cerns with such a conclusion. The principal issue in this case is one of statu-

tory interpretation, and it is upon this basis that we have reached our decision.

However, the concerns reflected in the Immigration Judge’s decision cer-

tainly warrant discussion.

First, the Immigration Judge noted that the Board ordinarily does not have

the benefit of a transcript when it reviews an Immigration Judge’s decision

regarding a motion to reopen. In circumstances where a representative has

appeared on an absent alien’s behalf, the Immigration Judge concluded that a

transcript could be essential to the resolution of an appeal from the decision

regarding the motion. However, the reasons for the alien’s failure to appear

4 Congressional concern with the entirety of the deportation hearing process is reflected in

the limitations on discretionary relief for failure to appear that were also established in section

242B. See section 242B(e) of the Act.

5 Inherent in any deportation order issued under section 242B of the Act is a finding that any

applications for relief have been abandoned for failure to prosecute. We note, however, that the

provisions of section 242B of the Act do not apply where a deportation order is entered against

an alien for failure to timely file an application for relief where there is no failure to appear for a

hearing involved. See Matter of R-R-, 20 I&N Dec. 547 (BIA 1992).

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are ordinarily not matters of record at the hearing, but are set forth in conjunc-

tion with the subsequent motion. Moreover, this Board has the authority to

direct that a transcript be prepared in any case in which it deems a transcript

necessary for a proper consideration of an appeal or motion.

The Immigration Judge also opined that the holding we have reached today

would interfere with the prompt conclusion of deportation proceedings. How-

ever, that should no more be the case in the factual circumstances here than

otherwise would occur under the “rescission” procedures of section 242B(c).

The delay in the present case resulted from understandable procedural confu-

sion that should be resolved, at least in part, today. In any event, in our view

the holding in this case more likely will eliminate delay than cause it.

Finally, the Immigration Judge expressed concern that the application of

section 242B in the current case would obviate the “good cause” standard

used by an Immigration Judge to determine when a continuance should be

granted. See 8 C.F.R. § 242.13 (1995); see also 8 C.F.R. § 3.20(b) (1995). We

do not find such to be the case. An Immigration Judge retains the authority to

grant a continuance or change venue when good cause is shown by an alien or

the Service, either prior to or at the time of the deportation hearing. See, e.g.,

Romero-Morales v. INS, 25 F.3d 125, 128 (2d Cir. 1994) (finding that an

Immigration Judge was not precluded from considering a pending change of

venue motion in a case where counsel appeared at the scheduled deportation

hearing on the alien’s behalf).

Moreover, if an Immigration Judge has properly excused the alien’s

appearance at a hearing (e.g., where it is impracticable for an alien to appear

due to mental incompetence or where an infant alien’s attendance with his or

her parents at a hearing is excused as unnecessary), the statute of course does

not compel the Immigration Judge to enter an order of deportation in absen-

tia. See, e.g., 8 C.F.R. § 242.11 (1995). Inherent in the “failure to appear” pro-

visions of section 242B is the concept of unauthorized absence from

deportation proceedings. Where a deportation hearing has been recalendared

for good cause shown or when an alien’s appearance has been otherwise

excused, section 242B would not apply.

However, if an absent alien’s presence at a deportation hearing has not

been excused and any request for a rescheduling of the hearing has not been

granted, the provisions of section 242B(c) of the Act apply. Thereafter, under

the “rescission” provisions of section 242B(c), a challenge to the entry of any

in absentia order based on the alien’s failure to appear can only be sustained if

the failure to appear was because of “exceptional circumstances,” the

absence of adequate notice, or the alien was in federal or state custody and

did not appear through no fault of the alien. In seeking to demonstrate

“exceptional circumstances,” a respondent can present the reasons underly-

ing the request for a continuance, along with any other reasons for his or her

absence, in the motion to reopen filed before the Immigration Judge under

section 242B. See Romero-Morales v. INS, supra, at 129-30.

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IV. EVALUATION OF THE RESPONDENT’S FAILURE TO

APPEAR

In light of the above discussion, the respondent’s motion to reopen follow-

ing the in absentia order in this case must be evaluated under section

242B(c)(3)(A) of the Act. That section provides that such an order can only

be rescinded because of “exceptional circumstances.” Section 242B(f)(2) of

the Act, in turn, defines “exceptional circumstances” as follows:

The term “exceptional circumstances” refers to exceptional circumstances (such as serious

illness of the alien or death of an immediate relative of the alien, but not including less com-

pelling circumstances) beyond the control of the alien.

The respondent failed to appear for his deportation hearing because he was

on a fishing vessel for employment purposes. We agree with the Immigration

Judge that this excuse does not rise to the level of exceptional circumstances

as set forth above. In this regard, we note that one must look to the “totality of

circumstances” to resolve this issue of exceptional circumstances. See H.R.

Conf. Rep. No. 955, 101st Cong., 2d Sess. 132 (1990), reprinted in 1990

U.S.C.C.A.N. 6784, 6797 (“[T]he conferees expect that in determining

whether an alien’s failure 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.”)

Here, the respondent’s situation has not been shown to be “exceptional,”

unforeseeable, or in any way beyond his control. Rather, after due warning

from the Immigration Judge to his counsel, the respondent elected to pursue

his business interests rather than attend a deportation hearing scheduled long

in advance. Without suggesting whether such would be an explanation

amounting to exceptional circumstances, we note that there is no evidence

that the respondent departed on the commercial fishing vessel prior to the

institution of the deportation proceedings or the scheduled hearings. There is

no evidence that he could not have returned at some point prior to the hearing

dates. The letter from his employer referencing the impossibility of getting

him off the vessel “at this time” was dated the day before the final deportation

hearing. Furthermore, the hearing had already been recalendared once and

respondent’s counsel specifically warned that no further adjournments would

be permitted on these grounds. Finally, we note that the respondent had many

months to arrange for his attendance, yet waited until the day of the hearing to

pursue a request for a continuance. Considering all these facts, the Immigra-

tion Judge properly found that “exceptional circumstances” had not been

demonstrated for the respondent’s failure to appear on September 23, 1994.

In sum, the respondent has not presented exceptional circumstances for

his failure to appear at his deportation hearing as mandated under the provi-

sions of section 242B(c)(3)(A). Therefore, the decision of the Immigration

Judge denying the respondent’s motion to reopen will be affirmed.

ORDER: The decision of the Immigration Judge is affirmed.

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CONCURRING AND DISSENTING OPINION: Lory D. Rosenberg,

Board Member

I respectfully concur in part and dissent in part.

I agree with the ultimate conclusion of the majority. However, in my view

that conclusion begs the question(s) raised by the Immigration Judge who

certified this case to this Board. The majority decision does not, in my view,

explicitly address, as a practical matter, how to handle the variety of circum-

stances in which in absentia deportation issues may be implicated on a daily

basis before Immigration Judges. Further, to the extent the majority opinion

suggests, or could be read to suggest, either that the only motion which may

be filed following an in absentia order is a motion to reopen to rescind under

section 242B(c)(3) of the Immigration and Nationality Act, 8 U.S.C.

§ 1252b(c)(3) (1994), or that an alien’s unauthorized absence from a hearing

absolutely extinguishes all applications for relief, I believe the opinion

requires clarification.

Consequently, I write separately concerning my interpretation of how and

when the Immigration Judges and this Board shall determine whether an

alien ordered deported in absentia could make or has made an effective rebut-

tal of proper notice, could demonstrate or has demonstrated an excused

absence on account of being held in custody or for extraordinary circum-

stances, or, for that matter, has established eligibility for reopening to seek a

grant of discretionary relief from deportation before the Immigration Judge.

In addition, I write to distinguish emphatically the regulatory motion to

reopen procedures which are not governed or affected by the statutory provi-

sions of section 242B of the Act. See 8 C.F.R. §§ 103.5, 244.22 (1995).

First, I agree that principles of statutory construction support section

242B(c)(1) being applicable to unexcused absences at various stages of

deportation proceedings. It is correct to state that the issue before us is, in

large part, one of statutory construction. As I have indicated, I am in accord

with the premise that section 242B does not limit the entry of an in absentia

deportation order only to the initial hearing or to the “deportability” phase of

the proceedings.

In addition to the reasons put forth by the majority, I note that the statutory

language in section 242B(c)(1) mandates that the alien “shall be ordered

deported,” not “be found deportable,” which I read as a plain indication that

Congress was treating deportation proceedings comprehensively, as the

Supreme Court did under Foti v. INS, 375 U.S. 217 (1963), to encompass the

adjudication of deportability and ancillary applications for relief from depor-

tation. Further, I note that the recent amendments to 8 C.F.R. §§ 3.1, 3.23,

and 242.21, see 61 Fed. Reg. 18,900 (1996), to be effective July 1, 1996, per-

taining to motions to reopen, do not distinguish between various stages of

deportation proceedings resulting in absentia orders. Therefore, I concur

with the majority that the statutory language and implementing regulations

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provide undifferentiated authority allowing Immigration Judges to issue in

absentia orders throughout the course of deportation proceedings. I use the

term “allowing” rather than “requiring” because, as I discuss herein, while

the provisions of the statute are mandatory, nowhere do they expressly super-

sede the discretion of the Immigration Judge to otherwise conduct deporta-

tion proceedings according to the statute and regulations.

Second, the distinct statutory language of section 242B(c)(1) compared

with that of section 242B(e) does not support identical treatment of applica-

tions for relief from deportation. Neither the statutory language nor the legis-

lative history supports an interpretation which renders section 242B(c)(1)

more a penalty provision than a deliberate measure to achieve prompt deter-

minations and closure in the cases of deportable aliens. The overriding objec-

tive of Congress in enacting section 545 of the Immigration Act of 1990, Pub.

L. No. 101-649, 104 Stat. 4978, 5061-67, was to bring aliens to their hear-

ings, and the legislative history does not contain a punitive intent. See gener-

ally Gomez, The Consequences of Nonappearance: Interpreting New

Section 242B of the Immigration and Nationality Act, 30 San Diego L. Rev.

75, part II. B. (1993) (S. 358 Conference Committee report incorporated cer-

tain previously excluded enforcement provisions to ensure that aliens were

properly notified and in fact would appear for their hearings).

To the extent that the majority contends that “the notice provisions of this

section do not differentiate between hearings which address deportation

charges and those which address applications for relief from deportation,”

see supra p. 5, I must disagree. In fact, the language of the statute makes clear

that there are substantive distinctions between the notice requirements and

the attendant consequences which attach to certain phases of the hearing and

certain forms of relief from deportation. As the majority notes, citing K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988), a construction of the statu-

tory language which takes into account the design of the statute as a whole is

preferred. See also COIT Independence Joint Venture v. Federal Sav. and

Loan Ins. Corp., 489 U.S. 561 (1989) (“whole statute” interpretation dictates

that statutory sections should be read in harmony to achieve a harmonious

whole).

The statute addresses, specifically and in plain language, the written

notice which must be provided in order to initiate and to proceed with an in

absentia hearing. An Order to Show Cause or a subsequent notice containing

notice of the time and place of the initial or rescheduled hearing, as well as

the consequences of failure to appear and the exception to those conse-

quences, must be provided to the alien in person, or if personal service is not

practicable, by certified mail to the alien or the alien’s counsel of record. See

sections 242B(a)(1), (2) of the Act. This Board has construed this statutory

requirement to be satisfied, at least in the latter case, upon mailing through

the United States Postal Service to the alien’s most recent address provided

under section 242B(a)(1)(F) of the Act. Matter of Grijalva, 21 I&N Dec. 27

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(BIA 1995). However, I note that to date, we have not specifically addressed

in a published decision the adequacy of the content of the notice.

Also on its face and by the use of plain language, the statute imposes dis-

tinct disqualifications from applying for or being granted certain forms of

relief from deportation resulting from failure to appear after proper notifica-

tion. See section 242B(e)(5) of the Act, which itemizes the forms of relief

barred, presuming proper notice has been given and an unexcused failure to

appear occurs. For these consequences, above and beyond the entry of the in

absentia order, to take effect, the form of notice must be both oral and written.

See section 242B(e)(1) of the Act, which refers to oral notice “either in the

alien’s native language or in another language the alien understands,” having

been given “at the time of the notice provided in subsection (a)(2).” Section

242B(e)(4)(B)(i), pertaining to proceedings involving asylum applications,

requires written notice “in English and Spanish” and “oral notice either in the

alien’s native language or in another language the alien understands.”

By contrast, no such limitations on granting relief are imposed under sec-

tion 242B(c)(1) of the Act. An individual who was provided notice to appear

under section 242B(c)(1) and who may be subject to an in absentia order of

deportation is not necessarily forced to forfeit a pending application for relief

from deportation not barred by the terms of the statute.

Third, I believe that the Immigration Judge may address the relevant

issues which either precede or flow from the rule that in absentia orders may

be entered at various stages of the proceedings. As suggested by the Immi-

gration Judge in certifying this case for our review, in many cases, the pru-

dent determinations of the Immigration Judge may be better exercised before

the fact. Thus, I believe the better reading of the statute is to allow latitude to

the Immigration Judge to address, at the time that failure to appear occurs, the

cases of those aliens whose nonappearance may be excusable on the statutory

grounds of either defective notice, custody, or extraordinary circumstances,

as characterized by the majority.

The circuit courts of appeals which have addressed this issue have indi-

cated a concern with a narrow, literal reading of the in absentia provisions,

see, e.g., Romero-Morales v. INS, 25 F.3d 125 (2d Cir. 1994), and most likely

would affirm an approach which gives effect to the statute without inordi-

nately burdening either the alien or the hearing process. I think that decision,

cited by the Immigration Judge, deserves further consideration. While in that

case, the United States Court of Appeals for the Second Circuit addressed

specifically a motion for change of venue, there is no reason to conclude that

such an approach is not equally appropriate with respect to other procedural

matters affecting the handling of other cases.

I do not pretend to be able to forecast the entire panoply of situations in

which an Immigration Judge may be otherwise required to enter an in absen-

tia order under section 242B(c)(1) of the Act according to the decision we

reach today. However, it is not difficult to project various scenarios in which

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the Immigration Judge might opt for a more practical resolution which com-

ports with the dual goals of fairness and efficiency in deportation

proceedings.

For example, a respondent, having an arguable claim of defective notice

based on a properly submitted change of address not apparent in the record

file, may have belatedly received notice through third persons at his or her

correct and current address. If that individual or her attorney contacts the

Immigration Court just prior to or on the hearing date and acknowledges

actual notice but the inability to appear because of the brevity of notice in

light of the travel distance, I see no reason to require an Immigration Judge to

enter an in absentia order simply by virtue of the alien’s failure to appear,

only to be faced thereafter with the respondent’s motion to rescind to reopen.

Rather, the Immigration Judge could continue the case, or with the alien’s

consent handle it telephonically. If that individual arrives an hour or two after

the scheduled hearing time, I see no reason simply to issue or to maintain an

already issued in absentia order. Rather, an Immigration Judge could opt to

vacate and revise his or her order to then and there acknowledge the situation

and simply reschedule proceedings. See Thomas v. INS, 976 F.2d 786 (1st

Cir. 1992) (Breyer, J., concurring) (finding that tardiness at the hearing did

not significantly interfere with the Immigration Judge’s ability to conduct it;

and that the Board acted arbitrarily in refusing to order a new hearing, proce-

dural interference, and the serious claim for relief from deportation).

Also, for example, if a respondent, family member or other medical pro-

fessional or official contacts the Immigration Court from an emergency room

where the respondent awaits treatment following a traffic accident on or

close to the day of the scheduled proceeding, and documentation of that situ-

ation is provided, I see no reason for an Immigration Judge to have to enter an

in absentia ruling only to later rescind it in the context of a motion to reopen.

Instead the Judge may assess and rule upon the situation immediately, albeit

in the context of adjudicating a continuance. Similarly, an attorney or repre-

sentative of the respondent may appear before the Immigration Judge on the

appointed date and present comparable information on behalf of a client. Cer-

tainly in such cases, local Immigration Court rules should ordinarily be fol-

lowed, and there should be service by the respondent upon the Immigration

and Naturalization Service that such events have transpired. However, in

appropriate cases an Immigration Judge could either grant a continuance or

excuse the respondent’s absence. I also believe that an Immigration Judge

may take notice of such circumstances as the physical relocation of the Immi-

gration Court between an original and a continued proceeding, which may

have engendered confusion and resulted in a failure to appear.

Further, I believe that the existing regulations provide the Immigration

Judge with authority to so act. In addition to the Immigration Judge’s author-

ity to order a continuance or adjournment of the proceedings, and her or his

authority to excuse the presence of a minor or mentally impaired person

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pursuant to 8 C.F.R. § 242.13 (1995) or 8 C.F.R. § 242.11 (1995), recognized

by the majority, 8 C.F.R. § 3.25 (1995) allows an Immigration Judge to waive

the respondent’s appearance where the alien is represented. This regulation

provides even broader authority to excuse the presence of the respondent in

such proceedings.

Moreover, I believe that 8 C.F.R. § 3.25 counters any argument that an

Immigration Judge is divested of authority to grant relief in the case of an

alien who fails to appear, but whose counsel appears. For example, assume

that an Immigration Judge has heard extensive testimony and/or received

into the record probative and compelling documentation supporting either a

grant of political asylum, or in the alternative, voluntary departure. For some

reasons, perhaps unknown, the respondent fails to appear at the scheduled

proceeding in which the Immigration Judge will deliver his or her oral deci-

sion. In such a situation, in my view, the Immigration Judge need not simply

enter an in absentia order; rather, he or she has the latitude to determine that

the respondent’s presence is excused and proceed to render the oral decision

and order in the case. In particular, as I read the statute and regulations

together, in the instant case, the Immigration Judge might have opted to deny

a continuance but simply excused the respondent’s absence and granted vol-

untary departure.

In other words, I see nothing in the statute that so limits the Immigration

Judge’s discretion to achieve precisely the result which he declared origi-

nally in this case. As I read the holding of the majority, with which I concur, it

is more a matter of semantics and the election of which procedure to invoke.

Indeed, as the majority acknowledges, our decision today does not tie the

Immigration Judge’s hands or limit his or her discretion to independently

assess the individual circumstances that might warrant a result other than an

in absentia deportation order.

Fourth, our ruling does not address or bar otherwise proper motions to

reopen for relief based upon recently acquired eligibility or evidence which

was not previously available which might affect the outcome. A motion to

reopen to rescind is distinct from a motion to reopen, and each is governed by

separate provisions in the regulations. Our holding today that the in absentia

order may be challenged only under section 242B(c)(3) of the Act, does

not—and should not—be read to foreclose an alien from seeking to reopen

such a deportation proceeding for consideration of an application for political

asylum, or for any other forms of relief from deportation that may be avail-

able according to the terms of the current statute not barred by section

242B(e) as the result of proper notification having been given under section

242B(e)(1).

Thus, I can agree that an alien who, having had proper notice and lacking a

showing, before or after the fact, as I have discussed, of defective notice or

extraordinary circumstances, fails to appear for a deportation hearing, is sub-

ject to entry of an order of deportation, upon a finding that deportability has

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been established by the Service by clear, unequivocal, and convincing evi-

dence. However, I do not agree with the majority opinion to the extent it

states or gives the impression that the only action then available to an Immi-

gration Judge is entry of such an order, and that the only mechanism by which

an Immigration Judge may further adjudicate or resolve the case before her or

him is through a motion to reopen to rescind under section 242B(c)(3).

515