                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-27-2005

Toro-Toro v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4647




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                        No 03-4647


                                 PEDRO TORO-TORO,
                                              Petitioner

                                             v.

              ATTORNEY GENERAL OF THE UNITED STATES*;
         UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,
                          DISTRICT DIRECTOR,

                                                     Respondents


                          Petition for Review of an Order of the
                              Board of Immigration Appeals
                                (Board No. A78-407-544)


                       Submitted Under Third Circuit LAR 34.1(a)
                                  on January 14, 2005

   BEFORE: Before: ROTH, CHERTOFF,* Circuit Judges, IRENAS,** District Judge.




   *
      This case was submitted to the panel of Judges Roth, Chertoff & Irenas. Judge
Chertoff resigned after submission, but before the filing of the opinion. The decision is
filed by a quorum of the panel. 28 U.S.C. § 46(d).
   **
      Honorable Joseph E. Irenas, United States District Judge for the District of New
Jersey, sitting by designation.
   * Caption amended pursuant to Rule 43(c), Fed.R.App.Pro.

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                                  (Filed: June 27, 2005 )

                                    _______________

                                       OPINION
                                    _______________

ROTH, Circuit Judge.

       Petitioner, Pedro Toro-Toro, alleges the Immigration Judge (IJ) abused his

discretion by denying petitioner’s motion to reopen proceedings following an order of

removal entered in absentia. The IJ held that Toro-Toro’s misunderstanding of his

deportation hearing date was not an exceptional circumstance and therefore he must deny

Toro-Toro’s motion to reopen under 8 U.S.C. § 1229a(b)(5)(C)(i) (2000).3 The Board of

Immigration of Appeals (BIA) affirmed the IJ’s holding. Toro-Toro also contends that

the BIA’s affirmation was an abuse of discretion and violated his due process rights. We

find no abuse of discretion and no violation of due process and therefore will deny the

petition for review.

                                        I. FACTS

       Pedro Toro-Toro, a 40 year old native of Colombia, entered the United States in

July 2000. On August 11, 2000, Toro-Toro was charged with seeking admission into the

United States by fraud pursuant to 8 U.S.C. § 1182(a)(6)(C)(i) and seeking admission



   3
    The IJ cited § 240(b)(5) of the Immigration and Nationality Act (INA) in his Order.
This section has been codified in the United States Code. We cite to the United States
Code in this opinion both when citing for our own purposes and when indicating the
source of law on which the IJ relied.

                                             2
without valid entry documentation pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). Toro-Toro

had a Master Calendar Hearing on December 7, 2000 and requested additional time to

find legal representation. The IJ granted this request and set a new hearing date, March 1,

2001. Toro-Toro received personal notice of this hearing date and an interpreter read

Toro-Toro the notice in Spanish, his native language. Mistakenly believing that his

hearing was on March 2, 2001, petitioner missed his March 1, 2001 deportation hearing.

In his absence the IJ issued an order removing Toro-Toro to Colombia on the charges

contained in the notice to appear. On March 2, 2001, upon arrival at the courthouse for

his deportation hearing, Toro-Toro learned that an order of removal had been entered in

absentia the previous day.

       Toro-Toro filed a motion to reopen on June 4, 2001 and again on October 31,

2002. The first motion was not officially accepted because it was not in proper format.

The motion filed in October stated that petitioner missed his deportation hearing because

he mistakenly thought his hearing was on March 2, 2001, rather than March 1, 2001. He

also noted that his wife and three children were granted asylum in September 13, 2000.

       On November 25, 2002, an IJ denied Toro-Toro’s motion to reopen on the grounds

that petitioner had notice of the deportation hearing date and his failure to appear was not

justified by exceptional circumstances. On November 7, 2003, the BIA affirmed the IJ’s

holding and added that “[t]he fact that the respondent’s wife and children have now been

granted asylum does not changed the result of this case or provide any basis for reopening



                                             3
or remanding the proceeding as the Immigration Judge has no jurisdiction over claims to

derivative asylee status. See 8 C.F.R. § 1208.21 (c).”




                 II. STANDARD OF REVIEW AND JURISDICTION

       The denial of a motion to reopen is reviewed for abuse of discretion. INS v.

Doherty, 502 U.S. 314, 324 (1992). Under an abuse of discretion standard an agency’s

order is only disturbed if found to be arbitrary, irrational or contrary to law. Tipu v. INS,

20 F.3d 580, 582 (3d Cir. 1994). In addition, courts give significant deference to an

agency’s interpretation of its own statute. Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 844 (1984). Claims that Petitioner’s due process rights were

violated by the deportation proceeding are reviewed de novo. Sharma v. INS, 89 F.3d 545,

547 (9th Cir. 1996). This court has jurisdiction to review the denial of petitioner’s motion

to reopen under 8 U.S.C. § 1252(a)-(b).

                                     III. DISCUSSION

1. Exceptional Circumstances Standard

       An IJ must order a removal in absentia of an alien if the alien does not attend his

deportation hearing and clear and convincing evidence demonstrates that the alien

received notice of the hearing and that he is removable. 8 U.S.C. § 1229a(b)(5)(A). An

IJ may rescind an order of deportation entered in abstentia only if the alien demonstrates

he or she was unable to appear at his or her removal hearing due to exceptional



                                               4
circumstances. 8 U.S.C. § 1229a(b)(5)(C)(i). Exceptional circumstances are defined as

“circumstances (such as serious illness of the alien or death of an immediate relative of

the alien, but not including less compelling circumstances) beyond the control of the

alien.” 8 U.S.C. § 1229a(e)(1) (emphasis added). Toro-Toro claims that his

misunderstanding of his hearing date, which caused him to miss his deportation hearing,

constitutes an exceptional circumstance.

        The BIA correctly found that Toro-Toro’s misunderstanding of his hearing date

does not constitute exceptional circumstances. The IJ and the BIA are required to

consider the record as a whole when determining whether an alien meets the exceptional

circumstances standard. Romero-Morales v. INS, 25 F.3d 125, 127 (2d Cir. 1994). Toro-

Toro bases his exceptional circumstances argument on the fact that he misunderstood his

hearing date to be March 2, 2001, rather than March 1, 2001. The record indicates that

Toro-Toro was personally served with a notice of the hearing which designated March 1,

2001, as the date of the hearing. A Spanish interpreter was also present to inform Toro-

Toro about the date and consequences of missing the trial. Under the circumstances

surrounding Toro-Toro’s notice, his misunderstanding of his hearing date, is far less

compelling than serious illness or death of a relative and therefore the IJ did not abuse his

discretion in holding that Toro-Toro failed to meet the exceptional circumstances

standard and denying his motion to reopen pursuant to 8 U.S.C. § 1229a(b)(5)(C)(i) of the

INA..



                                              5
2. Due Process Violation

       Toro-Toro’s due process rights were not violated with the denial of his motion to

reopen proceedings. The constitutional sufficiency of an administrative hearing varies

according to the nature of the case and the relative importance of the governmental and

private interests involved. Sharma, 89 F.3d at 548 (citing Landon v. Plasencia, 459 U.S.

21, 34 (1982)). The government may set a higher standard for a motion to reopen

because it has an interest in maintaining judicial efficiency. Id. The BIA’s denial of

Toro-Toro’s motion to reopen did not deprive the petitioner of due process. The IJ

properly applied the exceptional circumstances standard to Toro-Toro’s case and the BIA

properly reviewed the judge’s application of it. Toro-Toro’s failure to meet this standard

does not equate to violation of his due process rights. See Sharma, 89 F.3d at 548

(finding the application of the exceptional circumstances standard did not violate

petitioners’ due process rights when they arrived 45 minutes late for their deportation

hearing).

                                     CONCLUSION

       For the foregoing reasons we will deny the petition for review.




                                             6
