Cite as 25 I&N Dec. 79 (BIA 2009) Interim Decision #3654
79
Matter of Jean Robert EVRA, Respondent
File A099 240 219 – Miami, Florida
Decided September 21, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The conduct underlying an alien’s arrest and incarceration does not constitute “fault”
within the meaning of section 240(b)(5)(C)(ii) of the Immigration and Nationality Act,
8 U.S.C. § 1229a(b)(5)(C)(ii) (2006), which provides that an order of removal issued at a
hearing conducted in absentia may be rescinded if the alien was in Federal or State custody
at the time of the scheduled hearing and the failure to appear was “through no fault of the
alien.”
FOR RESPONDENT: Linda Osberg-Braun, Esquire, Miami, Florida
BEFORE: Board Panel: PAULEY and ADKINS-BLANCH, Board Members;
GUENDELSBERGER, Temporary Board Member.
GUENDELSBERGER, Temporary Board Member:
On March 5, 2009, an Immigration Judge entered an in absentia order of
removal because the respondent failed to appear for his scheduled hearing.
The respondent filed a motion to reopen to rescind that order on April 3, 2009,
arguing that because he was in State custody at the time of the hearing, his
failure to appear was through no fault of his own. In a decision dated April 13,
2009, the Immigration Judge denied the respondent’s motion to reopen. The
respondent has appealed from that decision. The appeal will be sustained and
the record will be remanded.
An alien who fails to appear for removal proceedings may be ordered
removed in absentia pursuant to section 240(b)(5)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1229a(b)(5)(A) (2006). An order issued at a
hearing conducted in absentia may be rescinded at any time under section
240(b)(5)(C)(ii) of the Act upon a motion to reopen demonstrating that the
alien failed to appear because he did not receive proper notice of the hearingCite as 25 I&N Dec. 79 (BIA 2009) Interim Decision #3654
1 An in absentia order may also be rescinded under section 240(b)(5)(C)(i) of the Act upon
a motion to reopen filed within 180 days after the date of the removal order if the alien
shows that the failure to appear was because of exceptional circumstances. The term
“exceptional circumstances” refers to exceptional circumstances beyond the control of the
alien, such as serious illness of the alien or the death or serious illness of an immediate
relative, but not including less compelling circumstances. Section 240(e)(1) of the Act.
2 We note that “custody” is not confined to the criminal context, although that is the most
common situation in which it occurs. See Duncan v. Walker, 533 U.S. 167, 176 (2001)
(observing that “custody” may also arise as a consequence of civil commitment or civil
contempt).
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or was in Federal or State custody and failed to appear “through no fault of the
alien.”1
In his decision denying reopening, the Immigration Judge noted the
respondent’s assertion that his failure to appear for removal proceedings was
through no fault of his own because he was arrested and jailed prior to the
hearing. The Immigration Judge stated, however, that it did not appear that the
respondent’s State custody was through no fault of his own because he was
arrested for operating a motor vehicle while on a suspended license.
According to the Immigration Judge, “Only individuals who are confined in
state (or Federal) custody on criminal charge(s) at the time of their
immigration hearing and who are later acquitted of the criminal charges or
have their charges dismissed would be entitled to have their removal
proceedings reopened because their confinement was ‘through no fault of their
own.’”
On appeal, the respondent asserts that he did not appear for his removal
hearing because he was in jail in the State of Florida. He argues that the
Immigration Judge erred in finding that only incarcerated individuals who are
later acquitted or whose charges are dismissed may show that their failure to
appear was through no fault of their own. The respondent claims that because
he was in custody at the time of his hearing, he failed to appear through no
fault of his own and that the in absentia order should be rescinded pursuant to
section 240(b)(5)(C)(ii) of the Act.
We find that the Immigration Judge erred in denying the respondent’s
motion to reopen. Section 240(b)(5)(C)(ii) of the Act provides that an
in absentia order may be rescinded upon a motion to reopen where the alien
demonstrates that he was in Federal or State custody at the time of the removal
hearing and failed to appear through no fault of his own.2
The clear purpose
of the statute is to prevent individuals in such custody from being ordered
removed in absentia when they are unable to attend their hearing as a result of
incarceration. Aliens in these circumstances are not free to attend removal
proceedings on their own. Cite as 25 I&N Dec. 79 (BIA 2009) Interim Decision #3654
81
Moreover, section 240(b)(5)(C)(ii) does not imply that an incarcerated
alien is at “fault” for being in Federal or State custody because of a criminal
charge and is thereby prohibited from seeking to rescind an in absentia
removal order. The conduct underlying the alien’s arrest and incarceration
does not constitute “fault” within the meaning of the statute. Therefore the
statute does not support the Immigration Judge’s interpretation that only
individuals who are confined on criminal charges at the time of their
immigration hearing and who are later acquitted or have their charges
dismissed may have their removal proceedings reopened because their
confinement was through no fault of their own. No authority was cited by the
Immigration Judge to support such an interpretation.
The respondent submitted evidence in support of his claim that he was in
State custody awaiting a trial date of July 13, 2009, at the time of his removal
hearing on March 5, 2009. Because the respondent was in such custody on the
date of his hearing and there is no indication that he was at fault in failing to
appear, we find that the Immigration Judge erred in denying the respondent’s
motion to reopen the proceedings to rescind the in absentia order of removal.
Accordingly, the respondent’s appeal will be sustained and the record will be
remanded to the Immigration Judge.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.