Petition for Review of an Order of the Board of Immigration Appeals. INS No. A17-987-182
Before: Fletcher, Poole and Thompson, Circuit Judges.
Pablo Perez Casas ("Perez"), a native and citizen of Mexico, appeals the Board of Immigration Appeals ("BIA" and "the Board") determination that he abandoned his application for waiver of inadmissability under Section 242(b) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1252(b). Petitioner argues that his motion to reopen meets the minimum threshhold of providing "reasonable cause" for failing to appear at his hearing. He also contends that the failure to reopen deportation proceedings held in absentia in order to consider the merits of his application for relief violates the Constitution's due process guarantee. The government responds that Perez's declaration in support of his motion to reopen supplies insufficient facts to explain his non-appearance at the scheduled deportation hearing and thus neither warrants reopening nor a determination that the challenged procedures are constitutionally inadequate.
Our jurisdiction rests on 8 U.S.C. § 1105a(a). The denial of reopening of deportation procedures is reviewed for abuse of discretion. INS v. Doherty, 112 S. Ct. 719, 724 (1992); Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988); see also Wijeratne v. INS, 961 F.2d 1344, 1348 (7th Cir. 1992); Maldonado-Perez v. INS, 865 F.2d 328, 329 (D.C. Cir. 1989). Denial of statutory or constitutional rights "may constitute an abuse of discretion requiring remand." Baires, 856 F.2d at 91. We deny the petition for review and affirm the BIA's denial of the motion to reopen.
Perez was admitted as a lawful permanent resident at the age of three. He has lived in this country for over twenty-five years. He has three American-born children and his mother, father, and siblings are either permanent residents or citizens. AR at 4. All reside in the United States. In 1988, Perez was convicted of possessing methamphetamine. A year later he conceded deportability under 8 U.S.C. § 1251(a)(11) (narcotics violation) and applied for a waiver of inadmissability under 8 U.S.C. § 1182(c). AR at 29. A hearing on the merits was held in August 1989. Although his attorney attended, Perez failed to appear for the hearing. At the time, the attorney was not aware of the problems preventing Perez from appearing even though he had had a telephone conversation with Perez's wife earlier that morning. He moved for a continuance which the IJ denied. The deportation hearing proceeded in absentia. Deeming Perez's application for a waiver abandoned, the IJ entered an order of deportation. Perez filed a motion to reopen with the IJ. In an appended declaration he explained that a motorcycle breakdown in Arizona had prevented him from appearing at his hearing in San Diego on the scheduled day. AR at 58. Only a blank undated receipt from a motel in Arizona was attached as corroborating evidence. AR at 59. Not finding Perez's explanation convincing or substantiated, the IJ determined that "reasonable cause" for his absence had not been shown. AR at 25-28. He denied the motion to reopen. The BIA upheld the IJ's determination with one Board member Dissenting from the decision. AR at 2-5.
Section 1252(b) provides that:
if any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails to attend or remain in attendance at such proceeding, the [immigration Judge] may proceed to a determination in like manner as if the alien were present.
8 U.S.C. § 1252(b). This provision authorizes hearings in absentia where a petitioner had a "reasonable opportunity to be present" and no "reasonable cause" for failing to appear. See Maldonado-Perez, 865 F.2d at 333-36; Baires, 856 F.2d at 92-93. An immigration Judge is entitled to find that an alien has abandoned his claim for relief from deportation if he fails to appear at a properly noticed hearing. See Matter of Balibundi, 19 I. & N. Dec. 606, 607 (BIA 1988) ("when a hearing is scheduled to consider an application for relief by a respondent and the respondent fails to appear at the hearing, the application should be deemed abandoned"); Matter of Nafi, 19 I. & N. Dec. 430, 431 (BIA 1987) ("applications for benefits under the Immigration and Nationality Act are customarily denied as abandoned or for lack of prosecution when the alien fails to file for or pursue them"). This discretion is subject only to a motion to reopen explaining that "reasonable cause" existed for the non-appearance.*fn1 See Matter of Haim, 19 I. & N. Dec. 641, 642 (BIA 1988) ("when the basis for a motion to reopen is that the immigration Judge held an in absentia [deportation] hearing, the alien must establish that he had 'reasonable cause' for his absence from the proceedings. If the alien had reasonable cause for his failure to appear, the motion will be granted; if he did not, the motion will be denied") (internal citations omitted). A motion to reopen can be brought under several regulatory provisions, but it must comply with the terms of these provisions. See Marrero v. INS, 990 F.2d 772, 778-80 (3rd Cir. 1993) (provisions include 8 C.F.R. §§ 3.2, 103.5(a), 242.22). Courts have not hesitated to find procedural default. Id. at 778 (petitioner defaulted because his motion to reopen did not present any "new evidence" as required under 8 C.F.R. §§ 3.2, 242.22).
Perez does not contest that he was given a reasonable opportunity to be present at the scheduled hearing. He received proper notice and warning of the consequences of not appearing. He does, however, challenge the BIA and IJ's determination that his failure to appear was not for reasonable cause. Because abandonment is presumed upon non-appearance, and may be rebutted only by reasonable explanation, the burden is on Perez to convince the IJ that he had "reasonable cause" for failing to appear, § 1252(b).
He did not. In the declaration attached to his motion to reopen Perez states that his failure to attend the hearing was a result of a motorcycle breakdown that forced him to spend the night in Gila Bend, Arizona. Neither the declaration nor the single attached receipt note the date of this overnight stay. AR at 58, 59. There is no evidence of the mechanical repairs undertaken to fix the motorcycle or of the alternative means of transportation used to return to California when it became clear it could not be fixed. Moreover, Perez offers no explanation for why he did not attempt to inform the court of his transportation problems through his wife or counsel. On the day of the hearing counsel told the IJ that he had previously telephoned Perez's house, and talked with his wife who informed him that Perez had telephoned her "and stated that he was on his way to her residence to get her and bring her to the hearing." AR at 26. Perez does not refute or elaborate upon the information made available to the IJ by his counsel.
We conclude that the lack of any kind of corroboration for his explanation supports the BIA's and the IJ's determination that the explanation is insufficient. We agree with the government that Perez's unsubstantiated account is the more "unbelievable" because "[a] story such as his is too easily proved." AR at 52. The IJ and the BIA did not abuse their discretion in finding no "reasonable cause" to have been asserted for failure to appear. Cf. Wijeratne, 961 F.2d at 1347 (explanation of having sought a change of venue because hearing too far away and too expensive to reach, insufficient); Maldonado-Perez, 865 F.2d at 335-37 (same); Patel, 803 F.2d at 806 (explanation of relying on attorney's advice not to attend insufficient); Shah v. INS, 788 ...