IN THE MATTER OF RUIZ

Citation Codes

Equivalent Citations

citation codes

Docket Number

A-27719773.

Attorney(S)

ON BEHALF OF APPLICANT: Salomon Lucki, Esquire 1996 S.W. First Street Miami, Florida 33135 ON BEHALF OF SERVICE: Kenneth S. Hurewitz General Attorney

Acts

Aliens And Nationality — Immigration And Nationality — Immigration — Admission Qualifications For Aliens; Travel Control Of Citizens And Aliens — Inadmissible Aliens
Aliens And Nationality — Immigration And Nationality — Immigration — Selection System — Asylum
Aliens And Nationality — Immigration And Nationality — Immigration — Adjustment And Change Of Status — Penalties Related To Removal
Aliens And Nationality — Immigration And Nationality — Immigration — Inspection, Apprehension, Examination, Exclusion, And Removal — Apprehension And Detention Of Aliens
Aliens And Nationality — Immigration And Nationality — Immigration — Adjustment And Change Of Status — Judicial Review Of Orders Of Removal

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Smart Summary

Factual and Procedural Background

The applicant was found excludable under section 212(a)(20) of the Immigration and Nationality Act as an alien without a valid immigrant visa following an in absentia exclusion hearing held on September 15, 1987. The immigration judge denied the applicant’s applications for asylum and withholding of exclusion and deportation for lack of prosecution and ordered exclusion and deportation. The applicant had initially appeared at an exclusion hearing on September 10, 1986, where the proceedings were continued to allow submission of an asylum application and scheduled for a merits hearing on September 14, 1987. The applicant failed to appear at that hearing. Subsequently, the applicant filed a motion to reopen the exclusion proceedings, supported by a physician’s letter asserting illness as reasonable cause for failure to appear. The immigration judge denied the motion to reopen on the ground that the applicant had not established prima facie eligibility for asylum or withholding of exclusion and deportation. The applicant appealed the denial of the motion to reopen, and the Board of Immigration Appeals reviewed the case on certification.

Legal Issues Presented

Whether a motion to reopen exclusion proceedings following an in absentia hearing requires the alien to establish prima facie eligibility for asylum or withholding of exclusion and deportation in order to be granted.
Whether reasonable cause for failure to appear at an exclusion hearing excuses the alien’s absence and entitles the alien to reopening of the proceedings.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
INS v. Abudu, 484 U.S. 94 (1988)	A motion to reopen may be denied if the applicant fails to establish a prima facie case for the underlying substantive relief.	The court distinguished the context of motions to reopen following in absentia hearings, holding that prima facie eligibility is not required to reopen but the right is to present the case at a full hearing.
Matter of Nafi, 19 I&N Dec. 430 (BIA 1987)	Discretion of immigration judge to find failure to establish admissibility and abandon asylum application when alien fails to appear at exclusion hearing.	Supported the principle that failure to appear can lead to exclusion and deportation but reopening is possible upon a showing of reasonable cause.
Matter of Haim, 19 I&N Dec. 641 (BIA 1988)	Requirement that an alien establish reasonable cause for failure to appear at an in absentia hearing to warrant reopening.	Formed the basis for the court’s holding that reasonable cause excusing absence entitles reopening without requiring prima facie eligibility for relief.
Matter of Patel, 19 I&N Dec. 260 (BIA 1985), aff'd 803 F.2d 804 (5th Cir. 1986)	Further authority on establishing reasonable cause for failure to appear in exclusion or deportation proceedings.	Reinforced the standard for reopening motions based on excusable absence.
Matter of Marallag, 13 I&N Dec. 775 (BIA 1971)	Standard for reopening exclusion or deportation proceedings on grounds of reasonable cause.	Supported the court’s conclusion about granting reopening when reasonable cause is shown.
INS v. Wang, 450 U.S. 139 (1981)	Requirement for motions to reopen to state new facts supported by affidavits or evidentiary materials.	Referenced as procedural standard for motions to reopen generally.
Matter of Leon-Orosco and Rodriguez-Colas, 19 I&N Dec. 136 (BIA 1983; A.G. 1984)	Procedural requirements for motions to reopen including submission of new facts.	Supported procedural standards for motions to reopen in immigration proceedings.
Matter of Reyes, 18 I&N Dec. 249 (BIA 1982)	Procedural standards for motions to reopen requiring new evidence or facts.	Referenced as part of the procedural framework for reopening motions.

Court's Reasoning and Analysis

The court analyzed the circumstances surrounding the applicant’s failure to appear at the exclusion hearing. It recognized that the immigration judge correctly found reasonable cause for the absence based on the applicant’s illness supported by a physician’s letter. The court emphasized that when a motion to reopen follows an in absentia hearing, the purpose of reopening is to afford the alien an opportunity to present the applications for relief at a full evidentiary hearing, rather than to establish prima facie eligibility for asylum or withholding of deportation at the reopening stage. This approach protects the statutory right to a hearing as provided by section 236(a) of the Immigration and Nationality Act and relevant regulations. The court cited established precedents holding that reasonable cause for failure to appear justifies reopening without the need for a prima facie showing of eligibility for relief. The immigration judge erred by imposing the prima facie eligibility requirement and denying the motion to reopen despite acknowledging reasonable cause. Accordingly, the court reversed the denial and remanded the case for a full hearing on the merits.

Holding and Implications

Holding: The decision of the immigration judge denying the motion to reopen is reversed, and the motion to reopen is granted.

Implications: The case is remanded to the immigration judge for a full evidentiary hearing on the merits of the applicant’s asylum and withholding of exclusion and deportation applications. This decision affirms the principle that reasonable cause for failure to appear at an in absentia exclusion hearing entitles an alien to reopening without the need to establish prima facie eligibility for relief at the reopening stage. No new precedent was established beyond the application of existing legal standards.

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MATTER OF RUIZ. In Exclusion Proceedings.

(1) Following an in absentia hearing, the underlying relief being sought by way of a motion to reopen is the opportunity to present the applications for relief at a full evidentiary hearing.

(2) Where an alien establishes reasonable cause for his failure to appear at his exclusion hearing, a motion to reopen the proceedings following an in absentia hearing will be granted without requiring that the alien establish prima facie eligibility for asylum or withholding of exclusion and deportation.

EXCLUDABLE: Act of 1952 — Sec. 212(a)(20) [ 8 U.S.C. § 1182(a)(20)] — No valid immigrant visa

In a decision dated September 15, 1987, an immigration judge found the applicant excludable under section 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(20) (1982), as an alien with no valid immigrant visa, denied his applications for asylum and withholding of exclusion and deportation for lack of prosecution, and ordered the applicant excluded and deported from the United States. The decision was rendered following a hearing held in absentia due to the applicant's failure to appear. The applicant subsequently filed a motion to reopen the exclusion proceedings. The immigration judge denied the motion to reopen in a decision dated December 9, 1987. The applicant has appealed from the denial of the motion to reopen. As it is unclear whether the appeal was timely filed, the Board will review this case on certification pursuant to 8 C.F.R. § 3.1(c) (1988). The decision of the immigration judge will be reversed and the record will be remanded. The request for oral argument is denied.

The applicant initially appeared at an exclusion hearing on September 10, 1986. At that time, the proceedings were continued in order to allow the applicant to submit an asylum application, with a hearing on the merits of the application ultimately scheduled for September 14, 1987. The applicant failed to appear for the scheduled hearing. In denying the motion to reopen, the immigration judge found, on the basis of a physician's letter submitted with the motion, that the respondent had been unable to attend the scheduled hearing due to illness and had established a "valid excuse" for his failure to appear for the hearing. However, the immigration judge denied the motion to reopen the exclusion proceedings on the basis that the applicant had not established prima facie eligibility for asylum or withholding of exclusion and deportation under sections 208(a) and 243(h) of the Act, respectively, 8 U.S.C. §§ 1158(a) and 1253(h) (1982).

The immigration judge erred in requiring the applicant to establish prima facie eligibility for asylum or withholding of exclusion and deportation in order for the motion to be granted, where the motion was filed in response to a decision by the immigration judge following a hearing held in absentia. A motion to reopen may be denied on the basis that the applicant has not established a prima facie case for the underlying substantive relief sought. See INS v. Abudu, 484 U.S. 94 (1988). But in the context of a prior in absentia hearing, the underlying relief being sought by way of the motion to reopen is the opportunity to present the applications for relief at a full evidentiary hearing. The right to such a hearing for purposes of determining excludability and presenting any applications for relief from exclusion is provided by statute and regulation. See section 236(a) of the Act, 8 U.S.C. § 1226(a) (1982); 8 C.F.R. § 236.2 (1988).

When an applicant for admission has notice of his exclusion hearing and fails to appear, the immigration judge may, in his discretion, find that the applicant has failed to establish his admissibility and has abandoned any application for asylum and may further order the applicant excluded and deported. Matter of Nafi, 19 IN Dec. 430 (BIA 1987). Where an immigration judge conducts an exclusion hearing in absentia, the alien can move to have the immigration judge reopen the proceedings when the cause of the alien's failure to appear relates to facts not before the immigration judge at the time of his decision. Matter of Haim, 19 IN Dec. 641 (BIA 1988).

A party seeking to reopen exclusion or deportation proceedings must state the new facts he intends to establish, supported by affidavits or other evidentiary material. 8 C.F.R. § 103.5 (1988); INS v. Wang, 450 U.S. 139 (1981); Matter of Leon-Orosco and Rodriguez-Colas, 19 IN Dec. 136 (BIA 1983; A.G. 1984); Matter of Reyes, 18 IN Dec. 249 (BIA 1982). When the basis for a motion to reopen is that the immigration judge held an in absentia hearing, the alien must establish that he has reasonable cause for his absence from the proceedings. Section 242(b) of the Act, 8 U.S.C. § 1252(b) (1982) (deportation proceedings); Matter of Haim, supra; Matter of Nafi, supra; Matter of Patel, 19 IN Dec. 260 (BIA 1985), aff'd, 803 F.2d 804 (5th Cir. 1986); Matter of Marallag, 13 IN Dec. 775 (BIA 1971). If the alien has reasonable cause for his failure to appear, the motion will be granted; if he does not, the motion will be denied. Matter of Haim, supra. Once reasonable cause has been established, the applicant retains his statutory right to an opportunity to present his asylum claim at a hearing. To require him to establish prima facie eligibility for asylum in conjunction with his motion to reopen, before he is given the opportunity to a hearing on his asylum claim, would violate his statutory right to such a hearing.

Here, the immigration judge, in finding that the applicant had a "valid excuse" for not appearing at his exclusion hearing, determined that the applicant had reasonable cause for his failure to appear. Therefore, he erred in denying the motion to reopen. Accordingly, the decision of the immigration judge will be reversed, and the record will be remanded to afford the applicant a full evidentiary hearing on the merits of his applications for asylum and withholding of exclusion and deportation.

ORDER: The decision of the immigration judge is reversed.

FURTHER ORDER: The motion to reopen proceedings is granted, and the record is remanded to the immigration judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.