1 United States Court of Appeals,

Fifth Circuit.

No. 95-60795.

Eugene WELLINGTON, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

April 1, 1997.

Petition for Review of an Order of the Board of Immigration

Appeals.

Before JOLLY, JONES and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Eugene Wellington asks this cou rt to review and reverse the

decision of the Board of Immigration Appeals (the "BIA") affirming

an immigration judge's decision to deny Wellington's motion to

reopen his deportation proceedings. Finding a lengthy list of

errors in the processing of Wellington's application, we conclude

that the BIA abused its discretion when it denied Wellington's

motion to reopen.

I

Wellington was born in Zaire, but is a citizen of Sierra

Leone. Wellington first entered the United States as a visitor in

July 1986. In August 1989, Wellington married Sandra Caridad

Baptist, who was then a n alien admitted for lawful permanent

res idence. Wellington and his wife have two daughters together,

ages six and seven, both of whom were born U.S. citizens.

One year later, in Augu st 1990, the Immigration and

Naturalization Service ("INS") placed Wellington in deportation1 Under the Immigration and Naturalization Act (the "INA"), the

spouse of a lawful permanent resident may receive an adjustment of

status to lawful permanent resident when an immigrant visa becomes

available. 8 U.S.C. § 1154(a)(1)(B). Because the number of such

visas is limited, an applicant may have to wait two years or more

before a visa is available. See §§ 1151(b), 1152(a)(4), and

1153(a). The immediate relatives of U.S. c itizens, however, are

n ot subject to worldwide limits on the availability of immigr ant

visas. § 1151(a).

2 proceedings. In November 1990, Mrs. Wellington filed a petition to

have Wellington classified as an "immediate relat ive" for

immigration pu rposes. The petition was approved on February 1,

1991. 1 In the meantime, Wellington's deportation hearing was twice

rescheduled, ultimately to July 11, 1991. At the July 11 hearing,

Wellington conceded that he was deportable for violating the terms

of his visitor's status by working as a shoe salesman . The

immigration judge ordered Wellington deported, but permitted

voluntary departure by June 16, 1992.

By that date, no immigrant visa had become availa ble.

Wellington did not depart as required. Wellington's wife became a

naturalized citizen on September 16, 1992. Because of his wife's

naturalization, Wellington was no longer subject to a waiting list,

and became immediately eligible for an immigrant visa. 8 U.S.C. §

1151(b)(2)(A)(i).

On March 4, 1993, Wellington filed a motion to reopen his

deportatio n proceedings on the ground that he was now the

beneficiary of an immediate relative immigrant visa, and was

therefore eligible for adjustment of status. INS indicated that it

did not oppose reopening, so long as Wellington provided a copy of

his wife's naturalization certificate. The immigration judge2 The record does not contain any transcript of this hearing,

but INS does not dispute Wellington's statement, and the notice of

rescheduling is itself dated September 9.

3 concluded that Wellington had presented a new fact that was

material to his deportation proceeding, and granted the motion to

reopen on July 21, 1993.

Wellington's hearing on the reopened proceeding was initially

scheduled for September 9, 1993. Wellington states that he and his

attorney appeared, but that the INS attorney informed the

immigration judge that INS was not ready to go forward. 2 The

hearing was then rescheduled to October 14. The hearing was

subsequently rescheduled two additional times—neither time at

Wellington's request—to December 17 and, finally, to January 21,

1994. Notices of all changes were served upon Wellington's

attorney, but not upon Wellington himself.

Wellington's attorney misplaced the notice of the January 21

hearing. The attorney submitted an affidavit in which he swore

that he had contacted the INS attorney to inquire about the hearing

date, and was informed that the hearing was set for Ja nuary 24.

Neither Wellington nor his attorney appeared on Ja nuary 21.

Wellington states that both he and his attorney appeared on January

2 4. On January 25, the immigration judge issued a form order on

whi ch the selection for "neither the respondent nor the

responden t's representative was present" was checked. The order

continues as follows:

Therefore, as no good cause was given in regard to the failure

to appear at the hearing concerning the request for relief, I

find that the r espondent has abandoned any and all claim(s)4

for relief from deportation.

Wherefore, the issue of deportability having been resolved, it

is HEREBY ORDERED for the reasons set forth in the Immigration

and Nationalization Service charging document that the

respondent be deported to SIERRA LEONE.

Rec. 71 (capitalization in original).

Wellington did not directly appeal the January 25, 1994 order.

Instead, through his attorney, Wellington filed a second motion to

reo pen, in which Wellington again submitted documentation of his

wife's naturalization and the birth certificates of his two

daughters. Wellington additionally offered the "new fact" of the

misinformation provided by the INS attorney, and the fact that his

counsel would have been unable to attend a January 21 hearing.

Wellington attached an a affidavit from his attorney attesting to

the facts surrounding the missed hearing.

INS filed its response opposing Wellington's second motion to

reopen one week late. The response was accepted and considered,

despite an INS regulation that indicates that motions to reconsider

or reopen "shall be deemed unopposed unless timely response is

made." 8 C.F.R. § 3.23(b). In its response, INS argued that

Wellington's deportation proceedings should not be reopened because

Wellington had not established "good cause, within the meaning of

the Act" for his failure to appear at the January 21 hearing. The

response, filed by the trial attorney, indicated that she had "no

recollection" of any conversation with Wellington's attorney.

The immigration judge den ied Wellington's second motion to

reopen in a written decision filed April 14, 1994. The ruling

first observed that an immigrant seeking to reo pen a deportation5

proceeding must make a prima facie showing of eligibility for the

relief sought. The immigration judge further stated that "when the

basis for the motion to reopen is that the immigration judge held

the hearing in absentia, the alien must establish that he had

reasonable cause for his absence from the proceeding." The

immigration judge concluded that Wellington had not met the

"statutory requirement" of showing reasonable cause for his failure

to appear. The court found that it was therefore unnecessary to

determine whether Wellington had made the requi site p rima facie

showing of eligibility, and denied the motion to reopen.

The BIA dismissed the appeal on November 22, 1995. The BIA

found "no prejudice" to Wellington in the immigration judge's

consideration of the untimely response. The BIA further observed

that Wellington had been in deportation proceedings for some time,

and should have known the importance of appearance. The BIA

therefore questioned Wellington's "apparent failure to be

independently aware of the hearing date." The BIA concluded, like

the immigration judge, that Wellington had failed to establish

"reasonable cause for his failure to appear."

This appeal followed.

II

We have jurisdiction to review the agency's refusal to reopen

under the judicial review provisions of the Administrative

Procedure Act, 5 U.S.C. §§ 702-706. The APA specifies, in relevant

part, that the reviewing court shall set aside agency action found

to be "arbitrary, capricious, an abuse of discretion, or otherwise6

not in accordance with law

... [or] without observance of procedure

required by law." 5 U.S.C. § 706(2)(A) and (D). Although INS

enjoys broad discretion over motions to reopen, in this case the

agency's decision was both arbitrary and based upon a series of

actions that did not accord with the procedures required by law.

A

The INA permits an alien to apply for an adjustment of status

if the alien is eligible to receive an immigrant visa, and a visa

is immediately available. 8 U.S.C. § 1255(a). The parties agree

that Wellington is statutorily eligible for adjustment of status.

The INA does not specify the procedures by which an alien may apply

for adjustment. INS practice requires that aliens who have been

found deportable in deportation pro ceedings seek adjustment of

status through the mechanism of reopening the ir deportation

proceedings. S ee Yahkpua v. INS, 770 F.2d 1317, 1318 (5th

Cir.1985) (application for adjust ment of status construed as

request for reopening).

The motion to reopen is not created by the INA itself, but by

the regulations enacted pursuant to the INA. See 8 C.F.R. §§

3.23(b), 242.22. Wellington's deportation proceedings were

"reopened " as of July 21, 1993. The much-rescheduled adjustment

hearing that Wellin gton failed to attend was a "deportation

proceeding" to which the procedures specified in 8 U.S.C. § 1252

apply. Subsection (b) of this provision indicates that

... If any alien has been given a reasonable opportunity to be

present at a proceeding under this section, and without

reasonable cause fails or refuses t o attend or remain in

attendance at such proceeding, the special inquiry officer may3 We do question, however, whether INS' failure t o provide

Wellington with personal service of the notice would not constitute

"reasonable cause." Under the amended § 1252b(a)(2), INS is

required to provide, "in person," written notice of the time and

place of deportation proceedings, and of the consequences of

failing to appear. The notice in this case complied with these

requirements, except that it was delivered only to Wellington's

attorney, and not to Wellington himself—although Wellington had

provided his current address in his application for adjustment of

status. INS apparently takes the position that the personal notice

requirement applied only to Orders to Show Cause. I n re Grijalva,

Int. Dec. 3246, 1995 WL 314388, at *6 (BIA 19 95). Yet § 1252b

applies by its terms to "deportation proceedings" (as does § 1252,

which the INS repeatedly cites as applicable to this case), and

7 proceed to a determination in like manner as if the alien were

present.

If an alien fails without reasonable cause to appear for a hearing

of which he had notice, the immigration judge may properly conduct

an in absentia hearing.

If an alien is fou nd deportable or denied discretionary

relief in an in absentia hearing, he still may move for reopening.

However, an alien who seeks to reopen a deportation hearing that

was held in absentia must, in addition to meeting the normal

standards for reopening, demonstra te "reasonable cause" for his

failure to attend the previous hearing. U.S. v. Estrada-Trochez,

66 F.3d 733, 736 (5th Cir.1995); Patel v. INS, 803 F.2d 804, 806

(5th Cir.1986). INS argues on this basis that the BIA properly

denied Wellington's motion to reopen because Wellington had failed

to establish "reasonable cause" for his failure to appear at the

January 21 hearing.

We agree with INS that the error of an applicant's counsel in

misplacing the hearing not i ce does not constitute "reasonable

cause" for the applican t's failure to appear. 3 That point,states that "written notice shall be given in person to the alien

... in the order to show cause or otherwise ..." § 1252b(a)(2)(A).

Also, we have previously applied the provisions of § 1252b in

appeals concerning relief from deportation. See Estrada-Trochez,

66 F.3d at 736 n. 1.

4 That record contained a copy of Mrs. Wellington's

naturaliz ation certificate, a copy of the Wellingtons' marriage

certificate (which reveals that the couple had married before

Wellington wa s first placed in deportation proceedings), and

Wellington's application for adjustment of status, which indicates

8 however, is inapposite to this appeal. A demonstration of

"reasonable cause" is a prerequisite to reopening a determination

reached in an in absentia hearing. But no i n absentia hearing was

held in this case.

The statute specifically authorizes in absenti a hearings,

permitting an immigration judge to "proceed to a determination in

like manner as if the alien were present. " As the cases cited by

the BIA in its decision plainly reveal, an in absentia hearing is

a hearing on the merits of the record before the administrative

court. S ee, e.g., Matter of Balibundi, 19 I. & N. Dec. 606, 607

(BIA 1988) (affirming decision of immi gration judge who

"adjudicated the respondent's persecution claim based on the

written application submitted by the respondent"); M atter of Nafi,

19 I. & N. Dec. 430, 431 (BIA 1987) (alien found excludable in in

absentia hearing). S ee also Patel, 803 F.2d at 806 (immigration

judge ordered alien deported in in absentia h earing "after

reviewing the documentary evidence").

There is no evidence in the record to indicate that

Wellington's application for adjustment of status was adjudicated

on the merits of the record before the immigration judge. 4 On thethat the couple has two young children who are U.S. citizens.

5 We observe that the same regulation states that a denial due

to abandonment may not be appealed, although the applicant may move

to reopen, as Wellington did in this case. 8 C.F.R. §

103.2(b)(15).

9 con trary, the boilerplate order of January 25, 1994 states that

Wellington's application was deemed "abandoned" due to his failure

to appear.

Under 8 C.F.R. § 103. 2(b)(13), an application or petition

shall be considered "abandoned" if the ap plicant or petitioner

fails to submit requested evidence or to appear for an interview.

Presuming that the adjustment hea ring may be construed as an

"interview," the immigration judge properly concluded that

Wellington had "abandoned " his application within the meaning of

the regulation. We have no occasion to determine whether the

regulation comports with the requ irements of 8 U.S.C. § 1252(b),

because Wellington has not appealed the decision of the immigration

jud ge that his application for adjustment of status should be

denied due to abandonment. 5 We conclude only that this decision is

not the equivalent a determination reached in an in a bsentia

hearing. Because no i n absentia hearing was held, the rule that in

absentia determinations may only be reopened upon a showing of

"reasonable cause" is inapplicable.

B

The effect of the January 25, 1994 dec ision was simply to

reinstate the previous deportation determination. The decision

ordered deportation "for the reasons set forth in the Immigration10

and Naturalization Service charging document"; the sole charging

document in the record is the August 1990 Order to Show Cause.

Accordingly, we conclude that Wellington's February 23, 1994

motion to reopen, is (as it states) a motion to reopen the 1991

proceedings and the resulting December 1991 order of deportation.

An alien seeking to reopen a deport ation proceeding must both

establish eligibi lity and demonstrate that the "equities" in his

case will weigh in favor of granting the discretionary relief for

which reopening is sought. Yahkpua, 770 F.2d at 1320. We review

denials of motions to reopen for abuse of discretion. I NS v.

D oherty, 502 U.S. 314, 323, 112 S.Ct. 719, 725, 116 L.Ed.2 d 823

(1992).

In this case, the immigration judge and the BIA erred by

holding Welli ngton's motion to reopen to the showing required to

reopen a determination reached in an in absentia hearing. Under

the proper standard, it appears that Wellington's motion to reopen

should be granted. In his motion, Wellington offers the fact that

an immigrant visa is now immediately available to him because of

his wife's naturalization on September 16, 1992, combined with the

visa petition approved in 1991. This fact is material because it

makes Wellington eligible for an adjustment of sta tus to lawful

permanent resident, and it could not have been presented at the

July 1991 hearing.

Wellington's motion additionally offers substantial evidence

of "equities" weighing in his favor. He attached two Louisiana

birth certificates that indicate that Wellington and his wife were11

married and had a child together before Wellington was ever placed

in deportation proceedings, and that Wellington has two young

daughters who are U.S. Citizens by birth. The equities weighing in

Wellington's favor appear to exceed those in other cases where

reopening has been granted so that an alien could pursue an

"immediate relative" adjustment of status. S ee Israel v. INS, 785

F.2d 738, 740-41 (9th Cir.1986) (dis cussing "spouse of citizen"

cases).

Although decisions on motions to reopen are discretionary, an

agency may not depart from its settled policies without offering a

reasoned explanation. I NS v. Yang,

--- U.S. ----, ----, 117 S.Ct.

350, 353, 136 L.Ed.2d 288 (1996) ("an irrational departure from

[settled] policy (as opposed to an avowed alteration of it) could

constitute action that must be overturned as "arbitrary, capricious

[or] an abuse of discretion' within the meaning of the

Administrative Procedure Act"); Israel, 785 F.2d at 742 (holding

BIA decision "arbitrary" for refusing reopening without explanation

in case with facts "indistinguishable" from another i n which

reopening was granted).

The BIA and the immigration judge erred by applying the wrong

legal standard to Wellington's motion to reopen. The immigration

judge a dditionally erred by failing to consider the motion

unopposed, as required by INS' own regulations. These errors were

prejudicial to Wellington, for had his "unopposed" motion to reopen

been reviewed under the proper st andard, it should have been

granted.12 III

Accordingly, we conclude that the BIA abused its discretion

when it affirmed the decision of the immigration judge to deny

Wellington's motion to reopen. We therefore REVERSE the judgment

of the BIA and REMAND the case for further proceedings not

inconsistent with this opinion.

REVERSED and REMANDED.