Sultana v. Atty Gen USA , 293 F. App'x 951 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-26-2008
Sultana v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3945
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3945
___________
RAFIA SULTANA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A97-436-001
(U.S. Immigration Judge: Honorable Annie S. Garcy)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 10, 2008
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges
(Filed September 26, 2008)
___________
OPINION OF THE COURT
___________
PER CURIAM.
Rafia Sultana petitions for review of an order of the Board of Immigration Appeals
(“BIA”) affirming the denial of her motion to reopen her removal proceedings. Sultana
sought to reopen the proceedings after the Immigration Judge (“IJ”) entered an order of
removal in absentia when Sultana failed to appear at a scheduled removal hearing. For
the reasons that follow, we will deny the petition for review.
I.
Sultana is a native and citizen of India who was placed in removal proceedings in
November 2004. A master hearing was scheduled to take place on December 28, 2004.
This hearing was, however, subsequently rescheduled six times. At a hearing held on
October 27, 2005, proceedings were continued once again to provide Sultana an
opportunity to file an application for asylum. It appears that sometime thereafter, Sultana
filed, or attempted to file, an application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). At the following hearing,
which took place on November 28, 2005, Immigration Judge (“IJ”) Annie S. Garcy
apparently questioned whether Sultana had properly filed her I-589 application, and
instructed her to provide proof of filing by December 30, 2005. IJ Garcy further
instructed Sultana to provide the Department of Homeland Security with her biometric
information no later than December 30, 2005, and to submit any additional supporting
evidence by May 12, 2006. At the close of the hearing, IJ Garcy scheduled the removal
hearing for July 31, 2006.
Approximately one month before the removal hearing, IJ Garcy issued a
Memorandum on Case Status reporting that Sultana had failed to provide the requested
documentation, including proof of a properly filed I-589. As a result, the IJ stated that
she planned to deny Sultana’s application for asylum. In response, Sultana’s attorney,
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Adebola O. Asekun, submitted a revised I-589 and informed the IJ that the original had
been sent to Lincoln, Nebraska, for further action. At that time, Attorney Asekun also
confirmed that Sultana’s removal hearing was scheduled to take place before IJ Garcy on
July 31, 2006, at 9:00 a.m.
When the July 31, 2006 hearing commenced, however, neither Sultana nor her
attorney was present. Given that Sultana had previously conceded removability, IJ Garcy
entered an order of removal in absentia. Later that day, one of Attorney Asekun’s
colleagues, Charlesa London, filed a motion to reopen the proceedings, explaining that
she and Attorney Asekun thought that Sultana’s hearing was scheduled for 1:00 p.m. that
day. In support of the motion, Sultana submitted a statement explaining that Attorney
Asekun’s paralegal had misinformed her that the hearing was scheduled for 1:00 p.m.,
and that she herself had arrived at the courthouse at 11:30 a.m. fully prepared for a 1:00
p.m. hearing.
By order entered August 18, 2006, IJ Garcy denied the motion to reopen on the
ground that Sultana had failed to demonstrate exceptional circumstances excusing her
failure to appear. See 8 U.S.C. § 1229a(b)(5)(C). Upon review, the Board of
Immigration Appeals (“BIA”) affirmed.1 The present petition for review followed.
1
While Sultana’s motion to reopen was on appeal before the BIA, Sultana filed a
motion for reconsideration with the IJ. The BIA treated the motion for reconsideration as
a motion to remand under 8 C.F.R. § 1003.2(b), and denied it on the ground that it was
numerically barred. See 8 C.F.R. § 1003.23(b). In her brief, Sultana does not challenge
this aspect of the BIA’s order.
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II.
We have jurisdiction to review the BIA’s order pursuant to 8 U.S.C. § 1252(a)(1).
We review the denial of a motion to reopen a removal order entered in absentia for abuse
of discretion. INS v. Doherty, 502 U.S. 314, 323-24 (1992). As the Supreme Court has
stated, the regulations “plainly disfavor” such motions. INS v. Abudu, 485 U.S. 94, 110
(1988). We review de novo the legal question whether an alien’s due process rights were
violated. Chong v. INS, 264 F.3d 378, 386 (3d Cir. 2001).
Under the Immigration and Nationality Act, when an alien “does not attend” a
removal proceeding after written notice has been provided to the alien or the alien’s
counsel of record, the IJ must order the alien removed in absentia “if the Service
establishes by clear, unequivocal, and convincing evidence that the written notice was so
provided and that the alien is removable.” INA § 240(b)(5)(A), 8 U.S.C. §
1229a(b)(5)(A). Such an order may be rescinded, however, if the alien moves to reopen
and demonstrates that her failure to appear was because of, inter alia, “exceptional
circumstances.” See 8 U.S.C. § 1229a(b)(5)(C). The term “exceptional circumstances”
refers to circumstances beyond the control of the alien such as “battery or extreme cruelty
to the alien . . . , serious illness of the alien, or serious illness or death of the spouse, child,
or parent of the alien . . . .” 8 U.S.C. § 1229a(e)(1).
In the present case, the BIA agreed with IJ Garcy that Sultana had failed to appear
at the July 31, 2006 removal hearing, and that she did not demonstrate “exceptional
circumstances” to justify reopening the hearing. Sultana argues, however, that her
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tardiness did not constitute a failure to appear within the meaning of the statute, and that
the in absentia order was entered in violation of her due process rights. We disagree.
In support of her argument, Sultana relies on this Court’s decision in Cabrera-
Perez v. Gonzales, where we found that an alien’s minimal tardiness did not rise to the
level of a “failure to appear.” 456 F.3d 109, 116 (3d Cir. 2006). In that case, the alien,
Dominga Cabrera-Perez, arrived at the courthouse 15 to 20 minutes after her removal
hearing was scheduled to commence on account of unexpected traffic. Id. at 113. The IJ
found that Cabrera’s tardiness amounted to a failure to appear and entered an order of
removal in absentia. See INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). The IJ
subsequently denied Cabrera’s motion to reopen and the BIA affirmed. Cabrera-Perez,
456 F.3d at 114. Cabrera petitioned for review, contending that her tardiness did not
constitute a failure to appear. Id. Upon review, this Court agreed, concluding that,
“[w]hen the delay is as short as it was here, there have been no prior instances of
tardiness, and the IJ is either still on the bench or recently retired and close by, it is a due
process violation to treat the tardiness as a failure to appear.” Id. at 116; see also
Jerezano v. INS, 169 F.3d 613, 615 (9th Cir. 1999) (holding that alien who arrived 15 to
20 minutes late, and while the IJ was still on the bench, did not fail to appear); Alarcon-
Chavez v. Gonzales, 403 F.3d 343, 345-46 (5th Cir. 2005) (holding that arriving in the
courtroom 20 minutes late while the IJ is either still on the bench or recently retired and
close by does not constitute a failure to appear).
We agree with the BIA that the facts of Cabrera-Perez are distinguishable from
5
those here. Whereas the petitioner in Cabrera-Perez arrived at the courthouse only 15 to
20 minutes late, Sultana did not arrive until two hours after IJ Garcy had concluded the
hearing, and attorney London did not appear for another two hours after that. Moreover,
as the BIA explained, there is no indication in this case, unlike in Cabrera-Perez, that IJ
Garcy was still available for a hearing when Sultana and her attorney arrived later that
day. In fact, the record reflects that IJ Garcy was already engaged in other proceedings
when Sultana and her Attorney London appeared before her. Therefore, we find that the
BIA correctly concluded that Sultana failed to appear at the removal hearing. As a result,
she was required to show that exceptional circumstances excused her failure to appear.2
See 8 U.S.C. § 1229a(b)(5)(C)(i). We agree with the BIA that Sultana’s
misunderstanding about the time of the hearing is not the type of “exceptional”
circumstance contemplated by 8 U.S.C. § 1229a(e)(1).3
III.
In sum, and in light of the broad deference that we must accord the BIA’s decision,
see Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005), we cannot say that the BIA
2
Sultana does not argue that she demonstrated either of the other bases in 8 U.S.C. §
1229a(b)(5)(C) for rescinding a removal order entered in absentia.
3
In her brief, Sultana does not attempt to demonstrate that her failure to appear was
due to “exceptional circumstances,” but instead argues that the BIA failed to articulate the
basis for its finding that Sultana failed to demonstrate exceptional circumstances, and
asks this Court to remand the case to the BIA with instructions to provide “at least enough
detail so that there can be meaningful judicial review.” (Petitioner’s Br. at 39.) We
believe, however, that the BIA’s opinion provides sufficient detail to allow judicial
review.
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abused its discretion in affirming the IJ’s denial of Sultana’s motion to reopen.
Accordingly, we will deny her petition for review.
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