1The petitioners include Leticia Magdaleno de Morales and her

two daughters, Eunice Nefta and Monica, who were ages seven and

nineteen respectively at the time the IJ entered the in absentia

1

United States Court of Appeals,

Fifth Circuit.

No. 96-60263.

Leticia Magdaleno de MORALES; Eunice Nefta Morales-Magdaleno;

Monic Morales-Magdaleno, Petitioners,

v.

IMMIGRATION and NATURALIZATION SERVICE, Respondent.

June 26, 1997.

Petition for Review of an Order of the Board of Immigration

Appeals.

Before DUHÉ, BENAVIDES and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

This appeal requires us to determine whether the Board of

Immigration Appeals ("BIA") abused its discretion by denying the

petitioners' motion to reopen deportation proceedings after an

Immigration Judge ("IJ") entered an in absentia order of

deportation. We hold that the BIA correctly concluded that the

petitioners' failure to appear at their deportation hearing was not

the result of exceptional circumstances. Therefore, the BIA's

denial of the petitioners' motion to reopen is AFFIRMED and the

subject petition for review is DENIED.

I.

On June 23, 1993, the Immigration and Naturalization Service

("INS") instituted deportation proceedings against the petitioners

by issuing an order to show cause.1 A deportation hearing before
order of deportation. The petitioners are natives of and citizens

of Mexico. 

 

2Uncontradicted evidence in the record indicated that the

petitioners last entered the United States in December 1989 as

nonimmigrant visitors who were authorized to remain in the country

until January 8, 1990. The petitioners have remained in the United

States illegally beyond this period. Thus, the IJ found that the

petitioners were deportable under section 241(a)(1)(B) of the

Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(B), because

they remained in the country longer than their visas permitted. 

2

an IJ was scheduled for January 11, 1994. It is undisputed that

the petitioners were notified of the hearing and informed that

failure to appear could result in the entry of an in absentia order

of deportation.

Nonetheless, when the immigration court convened on January

11, 1994, the petitioners were not present. Accordingly, the IJ

proceeded in absentia and found that the charge of deportability

had been proven by clear, unequivocal, and convincing evidence.2

Therefore, the IJ ordered the petitioners deported to Mexico.

On January 27, 1994, the petitioners filed a motion with the

IJ seeking to rescind the in absentia order of deportation and

reopen the proceedings. The petitioners argued that this relief

was warranted because their failure to appear at the January 11

hearing was the result of exceptional circumstances. Specifically,

the petitioners contended that the mechanical failure of their car

on the way to the hearing constituted an exceptional circumstance

beyond their control.

On January 11, the petitioners left their home in Boerne,

Texas at approximately 7:00 a.m. to travel sixty miles to their

8:30 a.m. deportation hearing in San Antonio. The engine of the
3

petitioners' car died on the way to the hearing. Because the

petitioners were unable to repair the car themselves or pay to have

it towed to San Antonio and fixed there, they decided to try to get

a ride home so that a relative could repair the car.

At approximately 8:00 a.m., the petitioners obtained a ride

from a passing driver who took them to a grocery store in Boerne.

From there, the petitioners called a relative who picked them up

and drove them home. The petitioners arrived home at approximately

8:50 a.m.

The petitioners attempted to call the immigration court in San

Antonio when they arrived home but were unable to locate the phone

number in the San Antonio phone book or in their notice of hearing.

The petitioners did not attempt any further correspondence with the

immigration court until they received notice of the order of

deportation entered against them. At that time, the petitioners

contacted an attorney who filed the subject motion to reopen the

proceedings on their behalf.

The petitioners' motion to reopen was denied by the IJ, whose

decision was subsequently affirmed by the BIA. The BIA found that

the petitioners did not establish that exceptional circumstances

prevented them from attending the hearing. In reaching this

conclusion, the BIA explained that it was "not satisfied that the

[petitioners] did everything possible to attend the hearing."

Moreover, the BIA found it significant that the petitioners made

little effort to contact the court to explain their inability to

appear. Finally, the BIA noted that other than an affidavit
4

submitted by the petitioners, there was "no independent

confirmation that there was a mechanical breakdown on the day of

the hearing."

The petitioners timely filed a petition for review of the

BIA's decision with this court and this appeal followed.

II.

This court generally reviews only the decision of the BIA in

immigration cases because the BIA conducts a de novo review of the

administrative record. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197

(5th Cir.1996). The BIA's denial of a motion to reopen is reviewed

for an abuse of discretion. See Ogbemudia v. INS, 988 F.2d 595,

600 (5th Cir.1993); INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct.

719, 724-25, 116 L.Ed.2d 823 (1992); Sharma v. INS, 89 F.3d 545,

547 (9th Cir.1996). In conducting our inquiry, we review the

factual findings of the BIA for substantial evidence. CarbajalGonzalez, 78 F.3d at 197. Although we review de novo the BIA's

determination of purely legal questions, we will respect the

interpretation given to an ambiguous statutory provision by the

agency to which Congress has delegated responsibility for

administering the Act. Id.; see also INS v. Cardoza-Fonseca, 480

U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987);

Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S.

837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). The

government concedes that to the extent that this case involves a

legal interpretation of the meaning of the statutory term

"exceptional circumstances," this court's review is de novo.
 

3Pub.L. No. 101-649, 104 Stat. 4978 (1990). 

 

4The amended statute applies if notice of the hearing was

provided after June 13, 1992. Sharma, 89 F.3d at 547 n. 2 (citing

57 Fed.Reg. 5180 (February 12, 1992)). It is undisputed that the

petitioners received notice of their hearing on October 12, 1993.

 

5See Sharma, 89 F.3d at 548 ("It is unclear why Congress left

the "reasonable cause' language in § 1252 intact"); Romero-Morales

v. INS, 25 F.3d 125, 128 (2d Cir.1994) ("It is unclear what

Congress intended by adding the mandatory language combined with

the "exceptional circumstances' standard for reopening under [the

amended statute], while leaving intact the permissive language and

less stringent "reasonable cause' standard for avoiding in absentia

deportation under § 1252(b)"); Iris Gomez, The Consequences of

Nonappearance: Interpreting New Section 242B of the Immigration

5

III.

Section 1252(b) of the Immigration and Nationality Act, as

codified, provides that a deportation hearing may be held in

absentia if the alien "has been given a reasonable opportunity to

be present" and "without reasonable cause fails or refuses to

attend" the proceedings. 8 U.S.C. § 1252(b). When Congress passed

the Immigration Act of 1990,3 it significantly amended the

Immigration and Nationality Act. Although Congress left § 1252(b)

unchanged, it added § 1252b(c), which provides that "[a]ny alien

who ... does not attend a proceeding under ... this title, shall be

ordered deported under section 1252(b)(1) of this title in

absentia." Id. § 1252b(c)(1). The amended Act also provides that

an alien who files a motion to reopen may have an in absentia order

rescinded "if the alien demonstrates that the failure to appear was

because of exceptional circumstances." Id. § 1252b(c)(3)(A).4

Both courts and commentators have recognized some tension

between sections 1252(b) and 1252b(c)(3) of the Act as amended.5
and Nationality Act, 30 SAN DIEGO L. REV. 75, 150 (1993) ("In the

context of a deportation hearing under [the Act], both "reasonable

cause' and "exceptional circumstances' excuse nonappearance at a

hearing"). 

 

6Such evidence should be presented to the IJ prior to the

entrance of the order so that the IJ is given the opportunity to

refrain from proceeding in absentia. Typically evidence of this

nature would be presented in a formal motion for a continuance or

a change of venue. Cf. Maldonado-Perez v. INS, 865 F.2d 328, 335-

37 (D.C.Cir.1989) ("Petitioner's argument for his absence is

intertwined with his argument for a change of venue"); Patel v.

INS, 803 F.2d 804, 806 (5th Cir.1986) (concluding that the

petitioner did not establish reasonable cause for his absence and

that the denial of his motion for a continuance was not an abuse of

discretion). In an emergency situation such as existed here,

however, at least a phone call explaining the circumstances was

required to preserve a potential challenge to the IJ's authority to

enter an in absentia order. We express no view regarding the

existence vel non of reasonable cause under the facts of this case.

6

This tension is reflected in the petitioners' brief, which utilizes

the "reasonable cause" and "exceptional circumstances" standards

interchangeably. We believe, however, that some of the confusion

the amended statute has engendered is unwarranted.

Section 1252(b) by its terms defines an IJ's authority to

enter an in absentia order in the first instance. Section

1252b(c)(3), on the other hand, addresses the requisite burden on

an alien seeking to rescind an in absentia order that has already

been entered. Accordingly, a motion to reopen deportation

proceedings on the basis that the IJ improperly entered an order of

deportation in absentia must be supported by evidence that the

alien had reasonable cause for her failure to appear.6 Conversely,

a motion to reopen deportation proceedings to rescind a properly

entered in absentia order of deportation must satisfy the

exceptional circumstances standard.
7

In addition to comporting with common sense and the plain

meaning of the statute, this reconciliation of sections 1252(b) and

1252b(c)(3) of the Act has recently been adopted in rules and

regulations promulgated by the Executive Office of Immigration

Review. See Motions and Appeals in Immigration Proceedings, 61

Fed.Reg. 18,900, 18,908 (1996) (to be codified at 8 C.F.R. pt.

246). Because the petitioners cannot and do not challenge the

authority of the IJ to enter the in absentia order of deportation

in the first instance, they must satisfy the exceptional

circumstances standard to establish that the BIA abused its

discretion by denying their motion to rescind the order and reopen

the proceedings.

IV.

The amended Act expressly defines the term "exceptional

circumstances" to mean "exceptional circumstances (such as serious

illness of the alien or death of an immediate relative of the

alien, but not including less compelling circumstances) beyond the

control of the alien." 8 U.S.C. § 1252b(f)(2). The plain language

of the statute indicates that this is a difficult burden to meet.

Moreover, the statutory scheme as a whole contemplates that aliens

subject to deportation proceedings will make reasonable efforts to

attempt to avoid the entrance of in absentia orders, and awards

them for doing so by subjecting them to a less onerous standard.

Under the circumstances of this case, the BIA correctly concluded

that the mechanical failure of the petitioners' car on the way to

the hearing did not constitute exceptional circumstances within the
 

7Cf. Sharma, 89 F.3d at 547 (holding that the petitioners'

"traffic difficulties" did not constitute exceptional

circumstances); Thomas v. INS, 976 F.2d 786, 790 (1st Cir.1992)

(holding that "reasonable cause" did not justify reopening

deportation proceedings when the alien appeared thirty minutes late

for the hearing because the alien and his attorney "crossed

signals" about where to meet). 

8

meaning of the Act.7

First, we are not convinced that the circumstances were

sufficient to excuse the petitioners' attendance at the hearing.

In this regard, we are puzzled by the petitioners' decision to

"backtrack home" rather than proceed to San Antonio after their car

broke down. Similarly, the record does not explain why the

relative who picked the petitioners up from the grocery store could

not have driven them to San Antonio or lent them a car.

Even assuming that the petitioners justified their failure to

appear at the hearing, however, they did not make adequate efforts

to avoid entrance of the in absentia order. First, although the

petitioners car broke down approximately one hour before the

hearing, they did not call the IJ to explain their predicament.

Second, although the petitioners arrived home only twenty minutes

after the hearing was scheduled to have begun—when they presumably

still had time to explain their situation before being ordered

deported—they made no effort to contact the court beyond a cursory

search for the phone number. Finally, we find it significant that

the petitioners did not attempt any further correspondence with the

immigration court until over two weeks after their scheduled

hearing, when they received notice of the in absentia order of

deportation. In a matter of such overriding importance in an
9

individual's life, we would expect such efforts to be made.

V.

In sum, we conclude that the petitioners did not establish

that their failure to appear at the deportation hearing was the

result of exceptional circumstances. Thus, the BIA did not abuse

its discretion by denying the petitioners' motion to reopen their

deportation proceedings. Accordingly, the BIA's denial of the

petitioners' motion to reopen is AFFIRMED and the petition for

review is DENIED.