Summary
In this en banc decision, the Ninth Circuit granted a petition for review of the denial of a motion to reopen in-absentia removal orders. The court held that whether traffic-related circumstances qualify as “exceptional circumstances” under 8 U.S.C. § 1229a depends on the totality of the circumstances and rejected categorical rules. The court concluded that the immigration judge and Board of Immigration Appeals failed to consider relevant factors, including the severity of the traffic, petitioners’ diligence, and their lack of motive to evade the hearing, and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- What requirements govern whether circumstances qualify as exceptional circumstances under 8 U.S.C. §§ 1229a(b)(5)(C)(i) and 1229a(e)(1)?
- Whether the IJ and BIA may apply a categorical or per se rule that traffic delays cannot constitute exceptional circumstances.
- Whether the IJ and BIA abused their discretion by failing to consider the totality of the circumstances, including the severity of the traffic, petitioners' control over the delay, diligence, and possible motive to evade the hearing.
- Whether Hernandez-Galand v. Garland's treatment of the possibility of unconscionable results as a standalone element of exceptional circumstances should remain good law.
Holdings
- Exceptional circumstances require circumstances that caused the failure to appear, were beyond the petitioner's control, and were sufficiently compelling; the agency must evaluate the totality of the circumstances and the particularized facts of each case.
- There is no per se rule that traffic delays can never constitute exceptional circumstances, and courts and agencies may not adopt bright-line rules dictating what circumstances can or cannot qualify in every case.
- The IJ and BIA abused their discretion by applying a bright-line rule that traffic could not constitute exceptional circumstances and by failing to consider the totality of the circumstances, including whether the traffic was extraordinary and beyond petitioners' control, whether petitioners were diligent, and whether they lacked a motive to evade the hearing.
- To the extent Hernandez-Galand suggested that the possibility of unconscionable results is a standalone element of exceptional circumstances that the agency must consider, that holding is overruled.
Key quotations
“The statutory term “exceptional circumstances” necessarily involves a fact-intensive and case-specific inquiry. And it precludes any categorical rules dictating what can or cannot be an “exceptional circumstance” in every case.” (5-6)
“In other words, the circumstances (1) must cause the noncitizen’s failure to appear, (2) must be beyond the petitioner’s control, and (3) must be sufficiently compelling.” (8)
“We have never adopted a rule that traffic (or any other circumstance) is per se unexceptional. And we reject any bright-line rules about what can or cannot qualify as an exceptional circumstance because the statutory test depends on the totality of the circumstances in each petitioner’s case.” (12)
“Whether a petitioner can establish “exceptional circumstances” under 8 U.S.C. § 1229a(b)(5)(C)(i) depends on the totality of the circumstances in each case, and we reject any categorical rules dictating what does or does not meet that standard.” (16-17)
Factual background
Petitioners, an adult and her two children, were scheduled for an immigration hearing in Seattle after applying for asylum, withholding of removal, and CAT protection. They left Bremerton with a prearranged driver approximately one hour and forty-five minutes before the hearing, but two major accidents caused a severe, approximately ten-mile traffic backup and extended the trip to nearly four hours. Petitioners arrived after the hearing had ended, attempted to have their cases heard, and promptly moved to reopen with photographs and other evidence documenting the traffic conditions.
Procedural history
An immigration judge ordered petitioners removed in absentia after they arrived approximately two hours late for their initial hearing. Petitioners moved to reopen under 8 U.S.C. § 1229a(b)(5)(C)(i), asserting that two major traffic accidents caused an extraordinary delay beyond their control. The IJ denied reopening, and the BIA adopted and affirmed. The Ninth Circuit reheard the matter en banc, granted the petition for review, and remanded to the BIA.
Remand instructions
The BIA must reconsider petitioners' motions to reopen under the correct legal standard, assess the totality of the circumstances, and determine whether petitioners missed their hearing because of exceptional circumstances under 8 U.S.C. § 1229a(b)(5)(C)(i).