You will have to justify the excuse of the absence of the immigration court, according to the judges of the BIA

  • Delays caused by unforeseen circumstances are excusable when supported by detailed evidence
  • Decision clarifies 1997 ruling that general assertion about heavy traffic was not sufficient to reopen deportation case

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(Reuters) – The Immigration Appeals Board has made it easier for those threatened with deportation to reopen their cases after missing hearings, saying delays caused by bad weather or traffic jams can be excused in some cases .

A three-judge panel in a ruling on Wednesday said an immigration judge in Cleveland must reopen proceedings against a Guatemalan woman who was ordered to be deported after showing up with 40 minutes of delay to a 2019 court hearing due to severe snowstorm and related traffic accidents.

The BIA said unforeseen events beyond an individual’s control may constitute “exceptional circumstances” necessary for an immigration judge to overturn a removal order by default, provided a defendant provides corroborating evidence detailed information such as weather and traffic reports or medical records.

The board said the ruling was intended to clarify a 1997 BIA ruling in the SA- case, that a respondent’s general assertion that heavy traffic had caused him to be late in court did not constitute reasonable grounds for reopening his proceedings.

Farhad Sethna, who is representing the respondent in Wednesday’s case, said the law is unclear on what constitutes exceptional circumstances and the BIA’s ruling will help lawyers and judges better understand when individuals may be exempted from showing up late to court. “This is a wise move because part of the council’s competence is to put in place a framework or rubric for the underlying cases,” he said. The Department of Homeland Security did not immediately respond to a request for comment.

The respondent, identified as SLH-, entered the United States illegally in 2016, and the following year she applied for asylum or deportation denial for herself and her son, depending on the decision. She attended several hearings over the following months.

In March 2019, SLH- failed to show up for a scheduled hearing and the judge issued a default removal order. She filed a motion to quash the order and reopen the proceedings five days later, claiming she arrived in court 40 minutes late due to snow and car crashes on the highway on which she was moving.

In support of the motion, she submitted affidavits of herself and a driver she had hired, as well as media reports on snow and multiple traffic accidents. Weather data indicated that the temperature on the day of the hearing was below normal for this time of year.

The judge dismissed the request and SLH appealed to the BIA.

On Wednesday, council agreed with the respondent that the weather and traffic conditions were exceptional circumstances, particularly in light of the corroborating evidence she submitted with her petition.

“These detailed and substantiated allegations of unusual weather and traffic conditions affecting the Respondent’s specific route to immigration court go beyond the general and unsubstantiated assertions at issue in the SA- case”, writes Justice Deborah Goodwin.

The respondent had also appeared at several previous hearings and promptly filed her motion to reopen the proceedings, showing that she intended to appear on time or had an incentive to appear on time, Goodwin said.

The panel included Judges Anne Greer and Blair O’Connor.

This is the case of SLH- & LBL-, Board of Immigration Appeals, Interim Decision No. 4021.

For respondents: Farhad Sethna

For DHS: Deputy Chief Advisor Jeremy Santoro

Daniel Wiessner

Dan Wiessner (@danwiessner) reports on labor, employment and immigration law, including litigation and policy development. He can be reached at [email protected]

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