Herbert v. Ashcroft
325 F.3d 68
1st Cir.
2003
Check Treatment
Docket

*1 Arvizu, 534 fоrcement officers. U.S. 744; Ornelas, 517 U.S. at S.Ct.

699-700, 1657. But blind 116 S.Ct. defer- percep- The officer’s

ence is not owed. reasonable, objectively

tions must be

here were not. observed Furtado —an situation leaving parking lot near the

individual plates— with Vermont office in a car

SSA sufficiently resemble the earlier

did not justify Terry stop

smuggling scheme Considering totality

of the car.

circumstances, Agent suspicion Furtado’s ‍‌​‌​‌​​​​‌​‌​​​‌‌‌​​‌‌​‌‌‌​‌​​​‌‌​‌‌‌​​‌​‌​​​​‌​‍unpar- than a “inchoate and

was no more suspicion ‘hunch’”

ticularized of crimi- activity. Terry,

nal 392 U.S. at See Accordingly,

S.Ct. 1868. it was insufficient protection.

to warrant Fourth Amendment

The district court’s allowance of Golab’s AFFIRMED. suppress HERBERT, Petitioner,

Diland Dexter ASHCROFT, Attorney

John D. General States, Respondent.

of the United

No. 02-1950. Appeals,

United States Court

First Circuit.

Heard March 2003.

Decided *2 family court state

Massachusetts battery, and and assault bat- abuse/assault officer, resisting and ar- tery police on a originally Herbert was sentenced rest. court, however, in years prison; two to reduce the sentence granted his motion The 364-day suspended sentence. to a subject bеing charged Herbert INS under 8 from the United States to removal Doherty with whom Derege B. Demissie 1227(a)(2)(A)(iii) grounds § on the U.S.C. petitioner. on brief for Demissie was & aggravat- of an had been convicted that he year a sentenced to at least felony ed and Redfern, Attorney, Office of K. Janice prison. whom Robert Litigation, with Immigration McCallum, Jr., Attorney Gen- Assistant

D. of hear- action led to a series The INS Fuller, eral, Senior Christopher C. and September 2000 before ings beginning Counsel, re- on brief for were Litigation and Mas- judges Louisiana immigration spondent. appeared at all but sachusetts. Herbеrt the Louisiana hearings; at one of these LYNCH, and Judge, Circuit Before appear, Herbert did not hearing where STAHL, Judges. Circuit Senior CYR counsel informed court Herbert’s LYNCH, Judge. Circuit to Massachusetts and Herbert had moved obtained, of venue change requested, of native and citizen Herbert is a Diland Immigration Court. Coun- to the Boston permanent a lawful Tobago, Trinidad appeared at sever- retained Herbert sel for almost States of the United resident participated in have hearings al of a ten- and the father twenty-five years, on hearing At a Boston all of them. for petitions citizen. He American year-old 2001, 10, Herbert admitted January to re- of his ‍‌​‌​‌​​​​‌​‌​​​‌‌‌​​‌‌​‌‌‌​‌​​​‌‌​‌‌‌​​‌​‌​​​​‌​‍motion of the denial review removability requested an deport him. charge in absentia to open a decision he was apply denied because for cancellation opportunity motion was 1229b(b). for his minutes late Her- thirty approximately under 8 U.S.C. January 2002. 8 U.S.C. hearing his showing evidence bert submitted 1229a(b)(5)(A)(2000). is, however, to less than had been reduced sentence alone; are other there not a tardiness case eligible him for can- rendered year, which In of these light circumstances. unusual respond- day, next the INS cellation. The circumstances, peti- grant we unusual notice to an amended by filing ed review, denial of the reverse the tion for removability Herbert with charged review, agen- to the and remand 1227(a)(2)(E)(i),based on under U.S.C. with this consistent cy domestic vio- for a crime of сonviction opinion. again Herbert admit- response, lence. applied removability, but charge ted the

I. Herbert’s of removal. for cancellation aat was admitted application amended crimi- with a problems started Herbert’s At the June hearing on June for domestic abuse conviction in 1999 nal case until hearing, the IJ continued and the is now his fiancee of a woman who personally served 2002 and January pled guilty his child. Herbert mother of and his counsel with notice of p.m. Herbert courthouse 1:20 Dan- next cy delayed by were further a line at the actually cоurthouse entrance and did not January 2002 was arrive at the courtroom until around 1:30 p.m. approximately At scheduled for *3 arrived, p.m. spoke After he Herbert to day, attorney, Herbert’s 10:50 a.m. clerk, the IJ’s who advised him that he had an Stephen Lagaña, emergency filed mo- days 180 to file a motion to with tion for continuance the IJ. The mo- Attorney Lagaña explained tion had Herbert, who retained different counsel magis- to before a been ordered Lagana’s at suggestion, filed a motion to judge trate federal district court for a reopen his April matter, in another continued from hearing 11, reopen 2002 and an amended motion to day. Lagaña, who had preceding the told 16, motion, April 2002. In the Herbert phone Herbert in a conversation on Janu- argued attorney’s unexpected that his fail- 8, ary that he would be at 2002 Herbert’s appear, ure to heavy the rainfall and traf- never communicated to Herbert hearing, fic congestion, family’s and presence his family or Herbert’s that he would be un- personnel communication court participate. day, able Later that Her- together extraordinary constituted circum- expеct- bert told the IJ’s clerk that he had stances within the meaning of 8 C.F.R. ed there at the Lagaña hearing to be 3.23(b)(4)(iii) (2002). support of his represent him. motion, Herbert submitted affidavits from late, himself Though Herbert arrived himself, Herberb-Thomas, Dancy, Elty, mother, Angela Herbert’s Herbert-Thom- attorney, and his new copy Lаga- and a as, Herbert, grandmother, Elty S. ar- emergency na’s motion for continuance. p.m. rived at the courthouse at 12:00 When The IJ denied Herbert’s motion in a promptly, Herbert did not arrive Herberts 26, written decision on 2002. The IJ personnel Thomas informed the court held, “Pendency of a motion fоr continu- spoken she had with Herbert that morning ance will not appearance excuse of the and that arriving shortly. he would be respondent any hearing scheduled ad- Despite Herbert-Thomas’s statement and dressed in the motion.” Because the court motion, Lagana’s the pro- IJ nevertheless continuance, yet granted had not the the ceeded absentia and ordered Herbert concluded, IJ filing the mere of the motion deported Tobago. to Trinidad and The did not excuse Herbert’s absence. The IJ pending motion for continuance was still unexpected also ruled that traffic and when deported. the IJ ordered Herbert heavy rainfall do not amount to exceptional thirty Herbert himself arrived about 1229a(e)(l). circumstances. 8 U.S.C. minutes late for the Herbert and appealed Immi- the Board of fiancee, Alisya Dancy, planned hаd 24, gration Appeals. 2002, July On public transportation take affirmed, BIA opinion, without the decision child, together with their elected appeal of the IJ. follows. to call a cab instead since it raining recovering their child was from a II. throat Dancy infection. Herbert slightly p.m. called thе cab after 12:00 Our review of the BIA’s denial of it p.m. arrived at 12:30 cab was de- the motion to is for abuse of discre layed by heavy along traffic 314, Massachusetts tion. v. Doherty, INS 502 U.S. 323- Avenue and 1-93 North (1992); and arrived at the 112 S.Ct. 116 L.Ed.2d 823

71 (as (1st INS, exceptional 789 circumstances defined in v. Thomas section)[.] (e)(1) curiam). of this Cir.1992) subsection (per 1229a(b)(5)(C). 8 U.S.C. Subsection af summarily BIA has Where (e)(1) provides: under its determination firmed IJ’s “exceptional The term circumstances” the find procedures, we treat streamlined exceptional refers as the conclusion of IJ ings and (such as serious illness of alien or opinion. Albаthani Board’s own spouse, serious illness or death (1st Cir.2003); Chen v. F.3d alien, child, parent but not Cir.1996). (1st 5, n. F.3d circumstances) compelling less including final agen stands as the IJ’s decision thus beyond alien. the control *4 Albathani, 318 F.3d cy decision. See 1229a(e)(l). § here on 8 U.S.C. We focus 3.1(a)(7)(iii). 373; 8 C.F.R. requirement “exceptional the оf circum- perti- statutory are provisions ‍‌​‌​‌​​​​‌​‌​​​‌‌‌​​‌‌​‌‌‌​‌​​​‌‌​‌‌‌​​‌​‌​​​​‌​‍Several beyond ... the stances control first, analysis. The 8 nent to the U.S.C. alien.” 1229a(b)(5)(A), in absentia concerns adopted These in restrictions were re- provides:

hearings problem: a sponse to serious some aliens who, appear dеliberately hearings ... did not for notice Any alien after written stay thus effectively extended their in provided the alien or the has been imposed record, country. this This tactic consid- not attend alien’s counsel of does disrupted section, erable costs the INS and its be proceeding a under this shall and hear promptly efforts to schedule re- in [INS] removed absentia if the ordered discretionary for relief from quests remov- clear, by unequivocal, and establishes taken the al. court has restrictions convincing evidence that the written no- seriously. is provided was so аnd that the alien tice

removable.... Thomas, held, this court over the then-Judge that where Breyer, dissent of challenging A an or- petition for review attorney petitioner appeared and his the statute, is, by in “con- der entered absentia late, thirty minutes counsel approximately (i) provid- validity fined of the notice judge no effort to contact the had made (ii) alien, for ed to the the reasons delayed, him and inform would be attending proceeding, not alien’s (includ- by attorney previous absences (iii) whether or not the alien is removable.” explanation) necessi- ing one without had 1229a(b)(5)(D). The first and 8 U.S.C. continuances, abuse tated there was no of are not at The ade- third clauses issue. in denying discretion motion quacy agency’s reasoning under the of 976 F.2d at 790. Thomas was the See reviewed, stated, for second clause is as apparently only on which last occasion discretion. abuse of a similar issue. this court addressed gave as to when Congress guidance also found er circuits have sometimes Other timely reopen motion to should be al- reopen of motions to when ror denial lowed: See, petitioner tardy. e.g., Nazа was only— an Such order be rescinded (7th INS, 478, 484 Cir. 171 F.3d rova (i) 1999) reopen filed BIA upon (holding a motion to with- abused its discre days of motion by upholding after the date of the order IJ’s denial tion if two hours late reopen the alien demonstrates that where alien was interpret- waiting for her appеar she the failure to was because because er); entitled.”) (citation Jerezano v. 169 F.3d quotation and internal (9th Cir.1999) omitted); (reversing denial of alien’s see also Romero-Morales v. (2d Cir.1994) where alien “was 15 to 20 130-31 (“As late, noted, arrived Supreme minutes while the Court my IJ was has ‘a bench”). opic upon expeditiousness still on the insistence in the justifiable face of a request delay can think this is We one those rare right render the to defend with counsel an exceptional cases which ”) empty formality.’ (quoting Ungar v. Sa totality of exist. The the circumstances rafite, 575, 589, 376 U.S. S.Ct. important must bе considered. The most (1964)). L.Ed.2d 921 It highly improba factor to us is Herbert’s counsel time ble, least, to say the that Herbert would ly notified the IJ that he had been re have chosen to go forward without his quired appear day in U.S. District counsel on a matter importance of such requested Court and therеfore a continu Second, him. Herbert believed his counsel ance of immigration hearing. The IJ would be there for the hearing did not —he motion, did not act on that but rather know of the motion for continuance. Had conducted an absentia hearing. We p.m., counsel been there at 1 сounsel ordinarily would think that a requirement explained, would have as Herbert’s rela judge a federal that counsel *5 did, tives way. Herbert was on his given precedence. federal court would be witnesses, Since the relatives were their IJ, denying reopen, the motion to testimony ‍‌​‌​‌​​​​‌​‌​​​‌‌‌​​‌‌​‌‌‌​‌​​​‌‌​‌‌‌​​‌​‌​​​​‌​‍first, could have been taken rejected this circumstance with the com there delay. would have been no Jere Cf granted ment that until he the continuance zano, (“It 169 F.3d at 615 accepted is parties “all must attend the hearing and be practice for courts to give tardy litigants a prepared go to forward.” It appears it by second chance putting them at the end possible was not for Herbert’s counsel to calendar, and it seems both harsh separate, contemporaneous attend hear and unrealistic to treat nonappearance as а ings before the magistrate judge federal litigant’s failure to be in the courtroom at and the is why IJ —that the continuance called.”). precise moment his case is sense, requested.1 was In that the IJ’s whether, question We on these unique rejection of the motion for continuance as facts, there was even a true “failure to arbitrary reason to was and it appear.” See id. capricious. agree We would with the INS if As for the stated par need of the there were meaningful delay if this present ties to be while the IJ decided the simple were a situation of Herbert misсal- continuance, motion for there are two re culating how it long would him get take sponses. First, regulations, under to the hearing room on day a winter’s pres was entitled to have counsel Boston, this rationale would not suffice to ent. v. See Saakian 252 F.3d 24 overturn a denial of reopen.2 a motion to (1st Cir.2001) (“Aliens statutory See, have a e.g., Sharma v. 547- right represented counsel, (9th Cir.1996). be at their But that situation is not expense, deportation own proceedings. case, this and here agency acted arbi- right That an integral part is proce trarily capriciously in denying the mo- dural process due to which the alien is tion to this 1. The ap- record shows way that counsel had on their when the motion peared prior hearings. with Herbert at There was filed. nothing suggest in the record to the motion 2. We do not for a reach claim of denial of due ploy continuance was a to avoid the Indeed, deportation process question or the of what Herbert's rela- role the apparently tives and were already witnesses play analysis. child's illness should in the

73-75 America, UNITED STATES exceptional. See Naza fact case were Appellee, (“We agree ... with rova, F.3d at 484 that, deci when an IJ’s Circuit the Second deportation absentia enter an in BOULERICE, Defendant,

sion Lisa A. re Appellant. refusal to subsequent her order consti the alien’s the order threaten open No. 02-1035. rights, circumstances statutory

tutional Appeаls, States Court United sufficiently exceptional exist that are First ‍‌​‌​‌​​​​‌​‌​​​‌‌‌​​‌‌​‌‌‌​‌​​​‌‌​‌‌‌​​‌​‌​​​​‌​‍Circuit. re and warrant nonappearance to excuse Heard Nov. Romero-Morales, mand.”); 25 F.3d at 14, 2003. Decided reliance faith good (identifying alien’s availability of relatives and the counsel as factors testify behalf finding that extraor to a contribute could exist).

dinary circumstances va- grant petition, we

Accordingly, reopen, the motion

cate the denial of remand to the agency directions present his permitted to be

that Herbert or- removal. cancellation of So

claims

dered. dissenting.

CYR, Judge, Circuit Senior *6 ease for further remand this

I would that the record due to the fact en- insufficiently developed to appeal is as appellate determination a reliable

able motion

to whether denial discretion, an abuse

reopen constitutes capricious agen- arbitrary and alone an

let

cy action.