BIA Holds That Immigration Judges And The Board Of Immigration Appeals Lack The Authority To Recognize The BIA Holds That Immigration Judges May Exercise Their Discretion To Rescind An In Absentia Removal Order and Grant Reopening Where One Has Established Through Corroborating Evidence That His Or Her Late Arrival At A Removal Hearing Was Due To “Exceptional Circumstances” Per INA §240(e)(1) And In Doing So, Should Consider Factors Such As The Extent Of The Applicant’s Tardiness, Whether The Reasons For The Tardiness Are Appropriately Exceptional, And Any Other Relevant Factors In The Totality Of The Circumstances. Corroborating Evidence May Include, But Is Not Limited To, Affidavits, Traffic And Weather Reports, Medical Records, Verification Of The Applicant’s Arrival Time At The Courtroom, And Other Documentation Verifying The Cause Of The Late Arrival; However, General Statements – Without Corroborative Evidence Documenting The Cause Of The Tardiness – Are Insufficient To Establish Exceptional Circumstances That Would Warrant Reopening Removal Proceedings.
On June 30, 2021, the Board of Immigration Appeals (BIA or Board) sustained the appeal of a decision of the Immigration Judge (IJ) denying Respondents’ motion to rescind their in absentia order of removal and to reopen their removal proceedings; although DHS opposed the appeal, the BIA reopened proceedings and remanded the record.
Respondents, a mother and son, had entered the United States without inspection (EWI) and the mother attended an initial Master Calendar hearing in December 2016. Three months later, she filed an application for political asylum, withholding of removal and relief under the Convention Against Torture (CAT), and, in September 2017, appeared in Immigration Court for an individual hearing that was continued to March 2019. On that date, she did not appear at the scheduled time and was ordered removed in absentia; 5 days later she filed a motion to rescind the removal order and reopen proceedings.
As an initial matter, the BIA concluded the motion was timely filed under the regulations governing claims that “exceptional circumstances” caused a failure to appear at a removal hearing. In their motion, Respondents pled that the mother arrived late, despite hiring a driver, because of severe weather conditions and related traffic accidents, contending this established exceptional circumstances excusing her late arrival and warranting rescission of the in absentia order and the reopening of proceedings. As part of their motion, Respondents submitted affidavits from the mother and her driver; media reports describing snow and multiple traffic accidents on the morning of her hearing; reports of severe traffic delays in the area as a result; weather data indicating temperatures were lower than usual that day; and an allegation that, despite all this, the mother was only 40 minutes late to court. The IJ denied the motion, finding exceptional circumstances had not been proven; Respondent reasserted their arguments on appeal, alleging the mother’s situation was exceptional “because she appeared at all prior hearings during a period of 9 months”, had filed for relief with the court, and promptly filed a motion to reopen.
Initially, the Board found that a respondent’s tardiness or failure to appear may only be excused if he or she clearly demonstrates exceptional circumstances. Where one demonstrates “reasons for his or her tardiness beyond commonplace delays, such as a serious and unforeseeable accident preventing a timely appearance,” then he or she may be able to establish “exceptional circumstances” as defined under INA §240(e)(1), “depending on the specifics facts of the case.” Further, noted the decision, in assessing exceptional circumstances, the “totality of circumstances” must be considered. Relevant factors include the applicant’s age, prior attendance at hearings, eligibility for relief, and promptness in filing a motion to reopen – all of which shed light on whether a respondent intended to appear on time or otherwise had an incentive to do so. Additionally, stated the BIA, one “must provide adequate documentary evidence to support a claim of exceptional circumstances.”
Reviewing the IJ’s decision de novo, the opinion next noted that while the judge acknowledged the mother presented evidence of weather and traffic conditions, his decision lacked significant consideration and analysis of this evidence. The Board thus concluded that Respondent had established exceptional circumstances for her late arrival under the totality of the circumstances, holding that a tardy appearance resulting from weather and traffic conditions that is reasonable given the cause of the delay may result from exceptional circumstances warranting reopening of proceedings. In such a situation, the applicant must establish that the circumstances causing the tardiness were appropriately exceptional on a case-by-case basis, the weather and traffic conditions were not foreseeable, and that Respondent provided sufficient documentation corroborating that cause of the tardiness. Again, factors such as previous attendance at court hearings, evidence indicating the Respondent intended to appear, applications filed for relief, etc., may support exceptional circumstances claim.
On this record, the BIA found that Respondent “presented appropriate exceptional circumstances for her tardiness”; she hired a driver to get her to the court on time, proved she was tardy because of a snowstorm, which caused multiple accidents and severe traffic on the morning of her hearing. The low temperatures and commuter conditions were distinguishable from ordinary or foreseeable traffic delays. The evidence also supported her arguments that she intended to timely appear at her March 2019 hearing. Accordingly, the Board rescinded the in absentia order, reopening proceedings, and remanded the record to the IJ for further proceedings. Matter of S-L-H- & L-B-L-, 28 I&N Dec. 318 (BIA 2021).