*1 HERNANDEZ- Ricardo
VIVAS, Petitioner, & NATURALIZATION
IMMIGRATION
SERVICE, Respondent.
No. 92-70605. Appeals,
United States Court of
Ninth Circuit.
Submitted March 1994*. May
Decided * 34(a) panel appropriate finds this case 9th submis- Cir.R. 34-4. argument pursuant Fed.R.App.P. sion without *2 that, filed a mo- Hernandez
reasoned while required to he was still tion not been his motion had hearing Hernan- granted prior to the date. jurisdiction pursuant appeals. have dez We 1105a(a). peti- § to 8. U.S.C. tion.
I. 45-year-old is native and citi- Hernandez political He activist. of El Salvador. zen asserts that his brother and two Hernandez by squads in 1980. killed death cousins were wife, daughters live in El son and three His Salvador. the United States entered Ysidro, inspection near San Califor- without Legal Pilsbury, American Anne Central nia, on 1991. He arrested October was
Assistance, NY, Brooklyn, petitioner. for by authorities and an Or- U.S. Gerson, Kline, Cause was issued. Hernandez der Show J. M. David David V. Stuart Justice, charged deportability under Section Bernal, Washington, Dept, 241(a)(1)(B) Immigration and Natural- DC, respondent. for 125(a)(1)(B). A de- U.S.C. ization hearing was scheduled for Novem-
portation Centro, 13, 1991, A in El California. ber Angeles change venue to Los **, WIGGINS, Before: BRIGHT and T.G. A new hear- filed and NELSON, Judges. Circuit 19, 1991, for ing December was scheduled Roy ap- J. Daniel. Hernandez before IJ WIGGINS; Opinion Judge 19, 1991, hearing the December peared at Judge Senior Circuit Concurrence legal time to seek counsel. requested and BRIGHT. adjourned The IJ until 9,1992, WIGGINS, notified Hernandez of conse- and Judge: Circuit hearing. quences of failure (“Hernandez”) Ricardo Hernandez-Vivas York then went to New and of an from the petitions review order (BIA). he sought legal aid. On December Immigration Appeals Board of Her- York, change of moved for a venue to reopen deportation pro- his nandez seeks to stating hardship for him to ceedings it would may apply asylum so he explained He further Angeles. return to Los deportation. depor- At a withholding legal counsel absentia, that he had obtained free immigra- tation an (IJ) York to and had access New New York judge found that Hernandez was tion his Later, who could corroborate witnesses deportable. the IJ denied Hernan- addition, signed an affidavit reopen ground claim. In dez’s motion to deportability. The motion conceding explain Hernandez failed absence sent and affidavit were hearing. regular mail. appeal, finding BIA dismissed the waited for that he then not establish reasonable asserts Hernandez did and sched- respond immigration court to appear. The BIA the failure to ** designation. Bright, Myron Hon. H. Senior United States Circuit, Judge Eighth sitting by Circuit for the hearing in ule a new New York. Hernandez II. about the status mo- Filing A Change Does a Motion to Venue But,
tion. the IJ never received Hernandez’s Give Alien Reasonable Cause Not to *3 papers. Apparently, papers were mis- Appear Deportation at Hearing? his or placed misfiled someone at the Post When the basis of an alien’s motion to (Hernan- immigration Office or in the court. reopen is that the IJ a deportation alleges envelope dez that sent absentia, in the alien must establish immigration court never to him came back “reasonable for cause” his absence. In re mail.) were, however, papers return The Haim, (BIA 1988). I. & 19 N. Dec. 641 If January received the INS on 1992. the alien has failing reasonable for cause to immigration judge appear, The January granted; held the the motion will be if the not, alien hearing in absentia does pursuant to Section motion will Id. denied. 242(b) 1252(b).1 § 8 U.S.C. The The issue primary before the court is immigration judge deporta- found Hernandez having timely whether filed a charged. 6, 1992, February ble as On Her- change venue establishes reasonable cause reopen deporta- nandez filed a motion to his for at deportation hearing. absence a This is proceedings ground tion that he had a impression of issue first in the Ninth reasonable cause for appear: he Circuit. We filing hold that the mere of a timely had filed a change motion to venue. change motion to venue does establish Hernandez also at submitted this time an reasonable cause. asylum application. argues had 27, 1992, February
On
failing
IJ denied Her-
at his
nandez’s motion to reopen, finding
timely
because he had filed
that re-
a
opening
change
was not
venue. He
warranted because
Hernan-
stressed
while the
granted,
motion had not been
it
explain
dez had failed to
had
his
at
also
absence
been
9,1992,
denied. Hernandez
stated,
argues
further
hearing. The IJ
“In
failure to
as
(and
to the status
good
of his
the absence of
cause
in this case
change
motion to
shown)
venue was
He
reasonable.
reopening
no cause
per-
[was]
that,
contends
following
based
four
IJ
mitted.” The
did not address Hernan-
factors, he had no reason to believe
mo
explanation
dez’s
change
motion to
First,
tion
agency
would be denied.
regula
had been lost in the
venue
mail
inor
BIA
tions and
change
case law
for a
of
allow
immigration
Rather,
court files.
the IJ sim-
Smith,
3.20;
§
venue.
8See C.F.R.
In re
stated,
ply
the record “fails to
any
disclose
(BIA 1977). Second,
I. & Dec.
N.
he had
change
request
venue
until February
Thus,
deportability.
conceded
the INS
1992.”
prejudiced
would not be
by holding the hear
7, 1992,
July
On
the BIA dismissed Her-
ing away from the point of arrest. See In re
appeal.
nandez’s
Noting that Hernandez Rivera,
(BIA 1988).
19 I. & N. Dec. 688
change
had filed a
prior
motion to
venue
to Third,
venue,
change
motions to
timely
when
scheduled
the BIA held that
filed
accompanied by
and
an affidavit conced
filing
fact
“the
that such a
was made in no ing deportability,
always
“had
granted
been
way
respondent’s obligation
obviated the
Angeles judges.” Finally,
Los
the motion
attend the
hearing.”
to change venue
first such motion.2
timely
a
petition
filed
Nafi,
(BIA
for review.
In re
I. &
N. Dec. 430
Cfi
242(b)
provides
part,
Section
change
Act
"If
2. We note that one
of venue on Novem-
'8,
Centro,
ber
alien ... without
1991 from
reasonable cause fails or
El
California
Los
Angeles
already
had
been
parties
refuses to attend or remain in
[a]
attendance at
disagree
responsible
about
who
first
proceeding,
special
this
inquiry
may pro-
officer
venue. Hernandez
insists
to a
ceed
determination in like manner as if the
automatically
instigation;
it was filed
at the INS’s
1252(b).
present.”
alien were
8 U.S.C.
argues
requested
the INS
the venue
change.
hearing is
1987)
unreasonable
of a motion
at
(affirming an ITs denial
pend-
York
continuance is still
Vegas
Las
to New
a motion for
from
when
venue
Rivera,
one
I.
already
granted
hearing);
time
ing
had
when
(“Unless
though
he lived
even
& N. Dec.
York,
continuance,
face sub-
would
grants
and worked
judge
Las
hardship
required
if
to travel to
reasons,
stantial
the alien remains
or other
Vegas).
no contacts with Las
Vegas, and had
appointed
obligated
date.”).
adopt
choose to
D.C.
has filed
an alien who
The INS
holding.
Circuit’s
has not been
venue but
the scheduled
prior
granted the
*4
addition,
disagree
we
Hernan
In
hear-
appear at
scheduled
hearing, must
inquire
as
dez’s assertion that
asserts,
an
INS
such
Specifically, the
ing.
reasonable,
of his motion was
to the status
cause”
“reasonable
does not establish
alien
not
inquire
to
rea
Hernandez’s failure
it is unrea-
appear
to
because
for his failure
is
it
never reasonable to
sonable because
change
to
“assume that
sonable to
change
to
venue will be
that a motion
assume
granted.”
INS further
will
The
venue
Maldonado-Perez,
See
865 F.2d at
granted.
inquire
not to
argues
it is unreasonable
that
(stating that a reasonable alien would
335
hearing about
to the scheduled
prior
change
to
status of a motion to
Had
as
change venue.
of the motion to
status
hearing).
prior
have
submitted
to
he could
venue
inquired,
so
not
re-
the motion had
learned that
Furthermore,
to
Hernandez’s motion
deficiency.
sought
cure the
to
ceived
change
Hernandez did
venue was flawed.
reopen is
of a motion to
The denial
York; it
to con-
travel to New
is reasonable
subject to an abuse
discretion standard.
returning.
capable
he
See
clude that
is
—
-,
-,
112
Doherty,
v.
INS
(“Given that
Wijeratne,
(1976). pursuing While an alien’s interest in great, government’s claim is Hernandez that the failure of deporting illegal interest aliens must not 9, attorney present January INS See, e.g., Wijeratne, be underestimated. 961 1992, hearing to alert the toIJ Hernandez’s (noting strong governmen F.2d at 1346 “the governmental venue was preventing tal interest aliens who have misconduct. Hernandez asserts country illegally avoiding this entered from INS was aware of his by failing simply appear venue because it a copy had received of the hearings”). their Accordingly, we find 2, January motion on 1992. Hernandez fur due,process rights Hernandez’s were vio attorney ther contends that an INS is like a lated. government prosecutor. Consequently, an attorney’s justice, INS duty is to seek From, C. Should Hernandez Be Excused merely deport aliens. See United States Having To Appear Because Civil Prac- (9th Hill, 452, Cir.1991) v. 953 F.2d Filing Pleading By tice AUows (indicating prosecutor’s duty is to seek Mail? convict). justice, Thus, merely Her argues, nandez the very “at least the INS prac- Hernandez asserts that federal civil should have of the notified [IJ] tice pleadings subsequent allows com- sponte suggested and sua a continuance to plaint be filed mail. See Fed.R.Civ.P. let [Hernandez] know the same motion was Similarly, reasons, 5. he should not on Judge.” file with the having from excused at a sched- uled once has filed mail a The INS counters that there is no evidence venue. Hernandez ex- attorney present INS plains requiring immigration attorneys 9,1992, hearing even aware Hernan- "appear personally every and their clients to dez’s motion venue. All that they request want to of venue copy known is that a of the motion was impose par- would unreasonable costs Thus, in INS con- placed files. INS ties that serve useful purpose. no cludes, has failed to show governmental misconduct. immigra
The INS contends that the “seriously Again, tion court’s docket would be dis we INS. failure rupted” having attorney if an were excused from of the INS to alert the IJ to the governmental misconduct. was not RASHTABADI, attorney INS Khosrow Gharib is no evidence
There Petitioner, motion. United Hernandez’s aware of (9th 1323, F.2d v. States Dim Cir.1978) miscon (finding governmental no & NATURALIZATION IMMIGRATION evidence that [was] no “[t]here duct SERVICE, Respondent. tape’s existence knew prosecutor denied, it”), cert. intentionally withheld No. 92-70747. 59 L.Ed.2d 99 S.Ct. Appeals, States Court United (1979). Ninth Circuit. 5, 1994. April Submitted* CONCLUSION May Decided 1994. reasons, we foregoing For did not dem- for review. petition
onstrate Janu- at his Therefore, the BIA did not
ary affirming the LPs its
abuse discretion reopen.
denial of .Hernandez’s DENIED.
PETITION *6 concurring
BRIGHT, Judge, Senior Circuit
separately. concur in result.
I however, that the motion to agree, do not
I flawed, page as stated on
change venue was opinion.
1560 of this court’s
Nevertheless, mailing the motion to after or counsel immigration judge, petitioner obligation up on to follow
still retained make that the motion had
the motion to sure would be acted and filed and received immigration judge prior to the
upon deportation. Because up on
petitioner failed to follow or counsel I
the motion before affirming the IJ’s BIA not err reopen.
denial Hernandez’s motion * 34(a). Fed.R.App.P. panel appropriate 34-4 and finds this for submis- Cir.R. case argument pursuant oral to 9th sion without