On June 30, the Board of Immigration Appeals (BIA) – the administrative tribunal that hears appeals from immigration judge (IJ) decisions – reopened removal proceedings in Matter of S-L-H- and L-B-L-. To do so, the BIA ignored clear congressional mandates in the Immigration and Nationality Act (INA) and equated getting stuck in traffic with “serious illness” or the death of your spouse or child.
The facts of the case and the law are pretty straightforward – the decision, not so much.
The respondents in the case are a mother and son from Guatemala who entered the United States illegally. They were placed into proceedings, and applied for asylum. While the mother appeared for a merits hearing on that application on September 8, 2017, the court could not complete the case, and reset it to March 6, 2019.
I will stop right there, and note that the case had to be reset to a date almost 15 months later. That should not happen, but it does because the immigration court backlog, which currently stands at 1.337 million, is so large that it takes a year to get a new date.
In fact, in the Cleveland Immigration Court, where Matter of S-L-H- and L-B-L- was heard, the average completion time is 986 days – or about 2.7 years.
In any event, neither respondent appeared in court at the time set for that March 6, 2019 hearing, so the IJ ordered the respondents removed in absentia pursuant to section 240(b)(5) of the INA.
Apparently, the mother actually did show up at the court, but got there 40 minutes late. The BIA goes into great detail as to why: There was snow that day, and several traffic accidents along the route (which the BIA describes in great detail).
Five days later, the respondents filed a motion to reopen under section 240(b)(5)(C) of the INA. That provision allows the court to rescind an in absentia order of removal within 180 days “if the alien demonstrates that the failure to appear was because of exceptional circumstances”.
I apologize for all of these cites, but they are pretty important to understanding the IJ’s decision, and my problems with the BIA’s.
That’s because “exceptional circumstances” is defined for purposes of reopening an in absentia order in section 240(e)(1) of the INA as follows:
The term "exceptional circumstances" refers to exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien. [Emphasis added.]
Members of Congress understand traffic. They have to travel anywhere from a few Metro stops to thousands of miles to make it to work every week Congress is in session, and D.C. backups are notorious. And, the idea that the parties in any court case might get stuck in traffic is not exactly novel.
So, had Congress meant to include accidents on I-480 (one of the reasons for the no-show in this case) to the list of “exceptional circumstances”, they could have. They didn’t.
That’s because, as the Supreme Court has held, “in a deportation proceeding . . . as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”
Congress did not want to include “less compelling circumstances” like “snowstorms” and “traffic” in the list of reasons why an alien respondent might be given a pass for failing to show up for court because if they did, cases would be delayed forever – to the alien’s benefit and the backlog’s detriment.
You likely know where this is going, though.
The BIA here “clarified” its prior precedent to reopen S-L-H- and L-B-L-‘s case, explaining that traffic is actually a sufficient excuse for a failure to appear, except any future respondent will have to do what the respondents in this case did: Submit “affidavits, traffic and weather reports . . . verification of the alien’s arrival time at the courtroom, and other documentation verifying the cause of the late arrival”.
In so doing, the BIA did not fail to mention section 240(e)(1) of the INA, but it did fail to quote it in full.
For example, the BIA held: “Reasons for a tardy appearance may constitute ‘exceptional circumstances’ in some situations, even if those reasons are not specified in section 240(e)(1) of the Act.”
That would suggest that “tardiness” is akin to “battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien”, or that section 240(e)(1) of the INA is some sort of open-ended definition that the BIA can add to at its will.
By its terms, Congress did not mean the definition of “exceptional circumstances” in section 240(e)(1) to be completely closed-ended, but as you can see by reading it that it did intend to it extremely restrictive. Including “tardiness” – unless you were tardy because you were on an IV drip or taking your kid for surgery – expands that restriction until it is no restriction at all.
The interesting thing is that the BIA did quote section 240(e)(1) of the INA in its decision. Here’s what it said:
The term “exceptional circumstances” refers to situations “beyond the control of the alien,” such as “battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien.”
Did you notice what the BIA left out? The restricting language “but not including less compelling circumstances) beyond the control of the alien”. Perhaps that was an oversight, or perhaps that clause was omitted because it would have shown how ridiculous the BIA’s decision was, and how it trashed the language of the INA. Tough to say.
This decision does not “provide guidance to fill a gap”, as it asserts, because there really is no gap to fill. An alien fails to appear for a hearing because of a circumstance that’s as compelling as her serious illness or the death of her nuclear family member (even grandparents don’t count), or she doesn’t.
In this case, she didn’t, but the BIA reopened her case anyway. There’s nothing you or DHS can do about it, because neither of you can appeal a BIA decision to federal court.
All of that said, I somewhat fault the IJ. In a case like this, when the alien showed up 40 minutes late, I would have ripped up the removal order and either gone ahead with the case or scheduled it as quickly as I could.
That’s only partially out of sympathy. It’s mainly because I am a realist, and I know that some court, somewhere – be it the BIA or the circuit – is going to take pity on this respondent and reopen her case, regardless of what Congress says. That means that the case would drag on longer than if I just pretended that she had shown up on time in the first place.
Congress’s mandates in the INA have been ignored enough of late by the Biden administration. There is no reason that the BIA should use the excuse of “gap filling” to make it any worse.