United States Court of Appeals

Fifth Circuit 

## FILED

January 20, 2006

Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-61015

____________________

JOHN O WILLIAMS-IGWONOBE,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review from an Order of the Board of Immigration Appeals

____________________

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

John Williams-Igwonobe (“Petitioner”) petitions for review

from the Board of Immigration Appeals (“BIA”), which affirmed the

denial of his motion to reopen. The Immigration Judge (“IJ”)

applied the rules governing motions that seek to reopen orders

entered in absentia

. This case is controlled by our decision in

Wellington v. INS

, 108 F.3d 631 (5th Cir. 1997). Because there was

no valid in absentia hearing under Wellington

, we grant the

petition and vacate the BIA’s order.2 I. BACKGROUND

Petitioner, a native of Nigeria, entered the United States as

a nonimmigrant student in 1977. In 1986, Petitioner married a

United States citizen, Linda Williams-Igwonobe. He was convicted

of conspiring to commit mail fraud in 1988, and the Immigration and

Naturalization Service commenced deportation proceedings against

him. In 1990, Petitioner and his wife had a son, Christopher

Williams-Igwonobe. That same year, Petitioner sought to adjust his

status based on an approved I-130 visa petition filed by his wife.

Petitioner’s criminal conviction prevented him from adjusting

his status. Aliens convicted of crimes involving moral turpitude

are inadmissible. 8 U.S.C. § 1182(a)(9) (1988). The Attorney

General, however, has the discretion to waive inadmissibility on

several grounds. 8 U.S.C. § 1182(h). Petitioner sought waiver

under subsection (h)(1)(B), on the ground that deportation would

cause “extreme hardship” to an immediate relative who is a citizen

or permanent resident.

On November 4, 1991, the IJ denied Petitioner’s request for

waiver, ordering him deported. Petitioner appealed. For unknown

reasons, the case languished on the BIA’s docket for nearly seven

years. In the intervening period, Petitioner lost contact with his

attorney and did not notify the immigration authorities about his

change of address. On September 15, 1998, the BIA ruled in favor

of Petitioner and remanded to the IJ.3

Notice was mailed to Petitioner’s attorney, Theodore

Jakaboski. Jakaboski moved to withdraw, claiming that he had no

contact with Petitioner since 1991 and had no current address for

him. The IJ granted Jakaboski’s motion to withdraw and mailed

notice of a hearing set for February 16, 1999 to Petitioner’s old

address. Petitioner did not receive actual notice of the hearing

and failed to appear. The IJ deemed all claims for relief

abandoned and ordered Petitioner deported.

Three years later, Petitioner discovered the 1999 order. He

moved for reopening on March 25, 2002. In an attached affidavit,

Petitioner claimed that he had notified Jakaboski of his new

address in 1994 and that Jakaboski had agreed to forward this

information to the immigration authorities. The IJ denied the

motion to reopen, holding that Petitioner had not shown “reasonable

cause” for failing to attend the 1999 hearing. The BIA dismissed

Petitioner’s appeal, and this petition followed.

II. STANDARD OF REVIEW

W e review the denial of a motion to reopen “under a highly

deferential abuse-of-discretion standard.” Zhao v. Gonzales , 404

F.3d 295, 304 (5th Cir. 2005). Ordinarily, this Court reviews only

the BIA’s decision and does not consider the IJ’s ruling. Here,

however, the BIA essentially adopted the IJ’s decision. It stated

th at the “conclusion reached by the Immigration Judge . . . was1 Current regulations provide a stricter standard. A motion

to reopen an order entered in absentia may only be granted if the alien’s failure to attend was due to “exceptional circumstances beyond the control of the alien.” 8 C.F.R. § 1003.23(b)(4). The

IJ determined that the “reasonable cause” rather than “exceptional circumstances” standard applied because Petitioner’s deportation proceedings were conducted under 8 U.S.C. § 1252(b)
(1988) rather than 8 U.S.C. § 1252b (Supp. II 1990). See generally In re Cruz-Garcia , 22 I. & N. Dec. 1155 (1999). Neither party disputes the decision below that the “exceptional circumstances” standard is inapplicable to the case at bar.

4 c o rrect” and did not add reasoning of its own. Under such

circumstances, we review the IJ’s decision. M ikhael v. INS

, 115

F.3d 299, 302 (5th Cir. 1997).

III. DISCUSSION

Petitioner argues that the IJ incorrectly applied the

“reasonable cause” standard to his motion to reopen. We agree,

finding this case controlled by Wellington 108 F.3d 631.

The statute in place when Petitioner’s deportation proceedings

be gan provides for i n absentia hearings. If an alien fails to

appear for a scheduled hearing, the immigration judge may “proceed

to a determination in like manner as if the alien were present.”

8 U.S.C. § 1252(b) (1988). Aliens denied discretionary relief in

an in absentia hearing may still move for reopening. Wellington

,

108 F.3d at 635. The alien is required to demonstrate “reasonable

cause” for failing to attend the previous hearing. I n re Haim

, 19

I. & N. Dec. 641, 642 (1988). 1

In Wellington , this Court held that a showing of “reasonable5

cause” may be a prerequisite to reopening only when an underlying

in absentia hearing was held. I d. at 635–36. Furthermore, the

Wellington Court exp lained that “an i n absentia hearing is a

hearing on the merits of the record before the administra tive

court.” Id. at 636 (emphasis in original).

When Petitioner failed to attend the scheduled proceeding in

1999, the IJ issued a boilerplate order stating that all claims for

relief had been “abandoned.” As in W ellington

, there is no

indication that t he IJ considered the merits of Petitioner’s

claims. The IJ did not consider whether the impact on Petitioner’s

wife and son amounted to extreme hardship such that waiver of

inadmissibility was warranted under sect ion 1182(h). An order

deeming relief abandoned, though authorized under BIA regulations,

is not the equivalent of a determination reached in an in absentia

hearing because it is not a decision on the merits. I d. “Because

no in absentia hearing was held, the rule that in absentia

determinations may only be reopened upon a showing of ‘reasonable

cause’ is inapplicable.” Id.

At oral argument, the Government contended that any error in

applying the “reasonable cause” standard was not prejudicial. See

Beltran-Resendez v. I. N.S. , 207 F.3d 284, 287 (5th Cir. 2000)

( holding that statutory error in deportation proceedings was

harmless). It argued that Petitioner failed to introduce any

evidence of e xtreme hardship to an immediate relative to support2 Because the IJ’s erroneous use of the “reasonable cause”

standard disposes of this case, we do not consider additional claims of error raised by Petitioner.

6 his application for a section 1182(h) waiver. We disagree.

Petitioner ha s been married to a U.S. citizen since 1986. He

introduced seven affidavits from friends and relatives attesting to

the bona fides of the marriage. Furthermore, Petitioner and his

wife have a son, also a U.S. citizen, who was twelve years old when

the motion to reopen was denied. Record evidence also suggests

that Petitioner’s wife is an “unemployed housewife” and tha t she

and their son rely on Petitioner’s income and health insurance. As

in Wellington , Petitioner was prejudiced because he introduced

substantial evidence in support of a claim that has never been

considered properly on the merits. 108 F.3d at 637. 2

IV. CONCLUSION

Accordingly, the IJ’s decision that denied Peitioner’s motion

to reopen under the “reasonable cause” standard was an abuse of

discretion. The petition for review is GRANTED. We VACATE and

REMAND for proceedings in accordance with this opinion. S ee INS v.

Orlando Ventura , 537 U.S. 12, 16–17 (2002).