                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                                    NOT PRECEDENTIAL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,

                                             2
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.

                                             3
                                                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

                                                 4
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.

                                              6
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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