*1 786 reasons, For these we conclude that no adopt the conclusion therefore
We purposes judgment final for EAJA reached Hafner: issued, is and that claimant entitled been order Social judicial a remand [W]hen entry for a return to district court such disability contemplates cases ad- Security fees judgment for consideration proceedings that administrative ditional application. merits of the claim- determine will remanded Reversed and benefits, and thus ant’s for further proceedings. whether the claimant is a determine will party, the district court re- prevailing judgment a final enter
tains discretion purposes proceedings after
for EAJA completed. On have been remand hand, if the order directs remand other benefits, Secretary to award prevailing party a is
claimant judgment is the final order remand THOMAS, Petitioner, Philip purposes. EAJA omitted).19 (footnote 250-51 F.2d at 972 AND IMMIGRATION argues Secretary that standard The SERVICE, NATURALIZATION subjective intent of dis- on the based Respondent. prove unworkable. Yet trict court would presumed that the court it can be No. 91-1867. we think jurisdiction to retain intend does Appeals, United Court of States indication to express an cases absent First Circuit. (Welter applies even if contrary. id. See April does not remand order “evi- Submitted four sentence jurisdiction”). an intent retain dence 5, 1992. Decided Oct. Secretary suggests also that just such an intent relin- manifested here contention is jurisdiction. This frivo-
quish an intent would have been at
lous. Such practice prevailing Janu-
odds with final was entered
ary judgment 1990. No sug- at that time. No such
on the docket from the can inferred court’s
gestion denying the EAJA
subsequent appli- orders
cation, the remand had been ordered since judge. apparent And it is
by a different application in denied the
that the court compelled that such result
belief
Melkonyan belief we now find to have —a misplaced. ‘‘[Tjhis judgment, Eighth a final the Court stated: Circuit added that sentence
19. four
immediately ap-
particular
report
order would still be
part
remand
of this
committee
con-
Finkelstein, explaining
pealable under
proper
period
filing
peti-
"[a]s
time
cerned
statutory construction and
EAJA,
a matter of
sense,
common
appeala-
attorney’s
tion for
fees under
why
appealable
we see
reason
bility."
S.Ct.
496 U.S. at
n.
110
at 2666 n.
629
405(g)
judgment'
necessarily
under §
‘final
be
Co.,
Budinich v. Becton Dickinson &
8. Cf.
judgment’
purposes
‘final
(1988)
U.S.
Stuart M. Atty. Gen., Asst. Rob- Kendall, Jr., ert Director, Asst. Donald E. Keener, Acting Director, Asst. Office Immigration Litigation, Div., Washing- Civ. ton, D.C., brief, for respondent. BREYER,
Before Judge, Chief CAMPBELL, Judge, Senior Circuit SELYA, Judge. Circuit
PER CURIAM. petition This presents for review Immigration whether the Board of Appeals abused its in affirming discretion during order made ab- sentia The facts in this case are Thomas, disputed. not a native of Trini- dad, legally entered United States as an immigrant in In November was convicted in a Massachusetts district court of battery by assault and means aof (a dangerous bat). weaрon baseball years sentenced him to two imprison- ment. Subsequently, June the Im- migration (INS) and Naturalization Service issued an order to show cause why he deported should not be under 8 U.S.C. 1251(a)(4) (conviction based on a crime involving moral turpitude committed within years five entry and for which a sen- tence year of one imposed). more is total, hearings five were held between April and December 1987. At the first hearing, appeared without an at- Thomas torney. continued give case to him time to secure counsel. represent Thomas then hired an him. Due to a in the attorney’s conflict schedule, however, only apрeared Thomas hearing; the next at sent explaining letter with Thomas his absence. Accordingly, immigration judge again At continued the case. the third again present. on June counsel not previous hearing, Unlike the counsel did notify the court reason for this Although second absence. counsel
judge noted that Thomas’s had continuance, requested gave Thomas thought argued the basis more chance” on “one “presented” Thomas penalize want for waiver was to be at attorney’s appear- absence. itself. As for the late ance at the Thomas December June Thomas and Finally, on both *3 claimed he and time, this Thomas appeared. At counsel signals: they Thomas believed crossed allegations, the con- all factual admitted meet at at the courthouse were to 9:00 a.m. judge the deportability informed ceded and that Thomas and counsel believed would application for a filing bе an that he would copy to meet counsel at counsel’s office of under U.S.C. waiver going to prior some material to court. 1182(c). the judge The then set next 17 and instructed hearing for December judge Before the ruled on the motion to application to submit his waiver Thomas the reopen, appeal a notice of to Board of 7; December by the filed. Immigration Appeals was It con- of the hear- written notice counsel waived arguments essentially the same as tained application the to ing. Thomas submitted reopen the motion to and reconsider—that (not court) December 11. the on the INS equated tardiness should not be with a hearing December The final appear.” to the “failure Counsel added a.m. When to commence at 9:00 judge scheduled that since the had set observation immigration judge appeared, no one the the aside two hours for his and hearing He stated: the in held аbsentia. slightly appearance Thomas’s late should morning this matter was set over to not determine Thomas’s sta- This morning in the for a on tus. at nine waiver; 212(c) the Re- appeal. The Board the It dismissed first being permanent resi- spondent lawful the filing appeal noted that of the notice April of the United States since dent jurisdic- the divested Respondent has not submit- result, tion to rule on the motion. As the application, ted to the Court a waiver judge at the he record before the time 1-191, Respondent nor Form is the decision, his in is rendered absentia which attorney present in court at this time. It appeal, the record the Board reviews on morning. in the now nine nineteen no explanation contained Thomas’s ab- Respon- nothing heard from the We’ve record, held, sence. On such a the Board the reasons dent or his as to judge the properly the conducted appear morning. failure to here this their in absentia. by Deрortability established been The Board the to then treated motion clear, convincing unequivocal and evi- It reopen as a to remand. noted motion required Respon- dence as law. were the that the standards for a remand present make or dent is to establish reopening the cases same as ones for a he eligibility for relief which indicat- is, concerning hearings; in absentia pursuing. be It will be the ed would reasonable cause the alien establish Respondent Court that the Order The Board deter- appear. for his failure to deported from the United States be to explanation mined that сharge Trinidad on the basis of the ob- It did not reasonable cause. brief establish in the Cause. tained Order to Show was no affidavit pointed first out there up approxi- Thomas and counsel turned concerning the events in petitioner from According mately ten minutes later. to counsel’s statements and that
Thomаs,
off
judge
conducted an
constitute “evidence.”
brief
At
record discussion with counsel.
3.8(a) (“[mjotions
reopen
8See C.F.R. §
time,
declined to hear the matter
supported by affidavits or oth-
... shall be
ground that
had failed to
on the
material”).
evidentiary
er
concerning
the court
his tardiness.
contact
Nonetheless,
filed,
ad-
the Board went
Thomas then
on December
mo-
it,
dress,
petitioner’s
reject,
merits of
reopen and
tion to
reconsider.
If
arguments
as set forth
It
alien has
brief.
been
a reasonable
opportunity to
present
stated:
at a proceeding
section,
under this
and without reason-
explаnation
There has
forthcom-
able cause fails or refuses to attend
respondent
...
ing
why,
go
if the
did
as to
proceeding,
special
inquiry
alleged,
offi-
straight to the courtroom as
...
cer may proceed to a
appear
determination in
he was unable to
himself
like
as
fashion,
manner
if the alien
timely
present.
without counsel.
albeit
through
appeal,
respondent,
On
coun-
statute,
Under this
in absentia de
“[a]n
sel,
tardiness,
op-
as
asserts that mere
portation
legitimate
if the alien had a
posed
failing
without
appear
at all
opportunity
reasonable
to be
cause,
justify
reasonаble
does not
provide
failed to
reasonable
cause
*4
immigration judge’s proceeding in ab-
INS,
absence.” Maldonado-Perez v.
865
disagree.
In
sentia. We
order to en-
328,
(D.C.Cir.1989);
F.2d
333
see also Se
sure the efficient administration of immi-
INS,
667,
(3d Cir.1990)
wak v.
900 F.2d
672
gration proceedings, we do not find it
(alien may
complain
not
if he has
of
notice
appropriate
require
to
the
hearing
voluntarily
the
and
appear).
fails to
judge,
personnel,
court
and the Service
Basically,
requirement
the
that an
attorney,
to
the
wait at
courtroom for
alien be
opportunity”
“reasonable
period
hearing
the
allotted
the
bеfore
present
deportation
to be
at a
hearing is
proceeding in
If
alien ar-
absentia.
the
long
satisfied so
as the alien receives notice
already
rives late after a decision has
place
the
See,
of
date and
of the hearing.
rendered,
and demonstrates reason-
Sеwak,
(notice
e.g.,
The law in an to the Alleyne absentia Board.” INS, (3d Cir.1989); fairly straightforward. 8 U.S.C. 879 F.2d 1252(b) Sewak, provides: at accord F.2d 670-71. issue, Judge’s telephonically ed office to see to consider
Even were we Brief appeared,” if had Thomas relies on merit. find it without [Thomas] we concerning evidence exact- Imm.Law and at there is no Vasquez, 8 Matter of Also, (1990). Vasquez, placed. there is ly this call was Bl-42 when Proc.Reporter two scheduled that counsel’s office informed had no indication time. When of the misunder- hearings judge’s for the same chambers appeared standing concerning had where counsel was alien for the the time set twenty minutes after meet Thomas and the certain supposed to first ascer In- they would be late. consequence that deed, no one had contacted according immigration judge, tained that to the held an in attorney. He then judge’s or the INS contacted the never absentia chambers. ensure that remanded to above, say
The Board that the we cannot Given opportunity received a “reasonable refusing alien to remand the Board’s actions the merits of present at a dismissing appeal matter and in pointed application.” The Board asylum arbitrary, capricious or without a rational alien, the wit- his counsel and out that the Appeals As the basis. Court proper time. said, at the nesses were all District of Colombia Circuit *5 counsel, his he had not made According BIA, agencies in the mod- like other “[T]he immigration judge state, to the presence known inter- ern administrative has a keen intеrrupt not want to he did securing orderly disposition because in est hearing that had been scheduled other numerous claims which enter the vast scheduling prob- time. Given the same apparatus Reyes-Arias of the INS.” v. lems, “it would Board determined that (D.C.Cir.1989). INS, Giv- 866 F.2d immi- for the have been unreasonable en these institutional conсerns and the def- judge use, to have ascertained whether gration erential standard of review we outside the alien and his extravagant for a court which counsel] “it would be [the conclusion of the other rules, room at the in- enforces its own vigorously so hearing.” It also noted that such action deadlinеs, BIA as cluding to condemn the immigration prejudiced not have would having discretion in not its broad abused timely ad- judge’s “prompt interest in hear- providing [the alien] [another] ” deportation proceedings.... in judications ing.” Id. distinguishable. situation is Accordingly, petition for review Vasquez, Thomas and Unlike denied. present outside the courtroom at
were not Thus, BREYER, (dissenting). Judge, had the specified time. even Chief clerk to check outside the sent remand to me that we should It seems courtroom, Vasquez suggested, as the case papers us reveal case. The before this produced gesture would have that, had received his if Thоmas contacting the clerk results. As about might have convinced the he late, might being Vasquez deport- recommend that he not be judge to reasonably thought unnecessary; have it hand, the crime for which ed. On the one his client were fact he and prison, four months in assault he served knowledge, the other time and to counsel’s bat, serious. On the with a baseball simultaneously-scheduled on- case still was hand, drugs, he has other it did not involve is, in Vasquez That reason- going. had no other recorded misbehavior for sev- believed, cir- ably might have these country years; en has lived cumstances, that he would notified when years; helps support his moth- twelve had ended. case the other here; siblings and he er and two who live employ- supporting affidavits from his apparently was in his office Here counsel him, sug- er and others which Although the asserts who know a.m. brief at 9:00 Moreover, gest his tardi- office had earlier contact- rehabilitation. “[cjounsel’s significantly ness at judge’s with the abil-
interfere approximately conduct it. He was
ity to late;
thirty minutes for the hearing.
had scheduled two hours obvious, deportation, very
Finally, as is
severe, very stringent consequence. consequence, severity of the
Given interference, procedural
the minimal deporta- from
the serious claim for relief
tion, view, my Immigration Board
Appeals arbitrarily refusing acted to or-
der a new
I dissent. WYNNE, Plaintiff, Appellant,
Steven
TUFTS UNIVERSITY SCHOOL MEDICINE, Defendant,
OF
Appellee.
No. 92-1437. Appeals,
United States Court
First Circuit. Sept.
Heard 1992.
Decided 1992. Oct.
Rehearing Suggestion for Rehearing
En Banc Denied Nov.