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Case Number:	Date Filed:
98-70663	05/25/00




Petitioner,                                           No. 98-70663

v.                                                    INS No.
                                                     A29 838 505
SERVICE,                                              OPINION

Petition for Review of an Order
of the Board of Immigration Appeals.

Argued and Submitted
February 11, 2000--Pasadena, California

May 25, 2000

Before: Harry Pregerson, Warren J. Ferguson, and
Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw



Maziar Mafi, Santa Ana, California, for the petitioner.

James A. Hunolt, Office of Immigration Litigation, United
States Department of Justice, Washington, D.C., for the



WARDLAW, Circuit Judge:

Balbir Singh ("Singh") petitions for review of a Board of
Immigration Appeals ("BIA") decision dismissing his appeal
from an Immigration Judge's denial of his motion to reopen
deportation proceedings held in absentia. We have jurisdiction
pursuant to 8 U.S.C. S1105a (1996).1  Because the BIA erred
when it relied upon newly-created evidentiary standards in
dismissing Singh's appeal, we grant the petition.


Singh, a 38-year-old native and citizen of India, entered the
United States without inspection on August 8, 1993. On Janu-
ary 14, 1994, Singh filed an application for asylum claiming
1 Because the final order of deportation was filed after October 30, 1996
and the case was pending before April 1, 1997, we have jurisdiction to
review the BIA's decision under the transitional rules of the Illegal Immi-
gration Reform and Immigrant Responsibility Act of 1996 (the "IIRIRA"),
Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Pub.
L. No. 104-302, 110 Stat. 3656 (Oct. 11, 1996). The transitional rules pro-
vide that the Immigration and Naturalization Act ("INA") applies as codi-
fied prior to the passage of the IIRIRA. See IIRIRA SS 306(c)(1), 309(a);
Duarte de Guinac v. INS, 179 F.3d 1156, 1158 n.2 (9th Cir. 1999); Kalaw
v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997). We therefore have jurisdic-
tion under the pre-IIRIRA judicial review provision of the INA. See 8
U.S.C. S 1105a (1996).


persecution based on religion, membership in a particular
social group, and political opinion. Singh asserted he is "a
devout follower of the Sikh faith" and an active member of
the Akali Dal political party. Singh's declarations described
numerous instances of violence and persecution by Indian
police authorities and "anti-Sikh antagonists. " The asylum
officer denied the asylum application. An order to show cause
issued on February 8, 1996, alleging that Singh was deport-
able. Singh was ordered to appear before an immigration
judge on June 19, 1996.

Singh did not appear at his asylum hearing. The Immigra-
tion Judge ruled that because Singh had received notice and
a reasonable opportunity to be present, and had not presented
any cause for his absence, the hearing could proceed in absen-
tia. After hearing evidence presented by the INS, the Immi-
gration Judge found Singh to be deportable.

On September 26, 1996, Singh filed a timely motion to
reopen his deportation hearing. See 8 U.S.C.S1252b(c)(3)(A)
(1996) (motion to reopen deportation proceedings held in
absentia must be filed within 180 days). In support of his
motion to reopen, Singh declared that he "tripped accidently
in the home of his friend Pardeep Singh," twisted his foot so
severely that he could not go to work, and "remained confined
to bed for two weeks." Singh's sworn statement also asserted
that he could not afford to see a doctor "due to financial
strain," but that he took Tylenol caplets for pain and his friend
massaged his injured foot with oil. Singh also submitted a
corroborative declaration from Pardeep Singh, who witnessed
the accident and cared for Singh.

The Immigration Judge denied the motion to reopen, stat-
ing that "the court is unconvinced that [Singh]'s injury consti-
tutes a serious illness." The Immigration Judge noted that
Singh failed to see a doctor for his injury or to promptly con-
tact and inform the court of his inability to appear. Singh
appealed to the BIA, which dismissed the appeal on March


20, 1998. See In re B-A-S-, Interim Decision 3350 (BIA 1998)
(en banc). The BIA reasoned that Singh had not provided
"sufficient evidence" that his injury amounted to a "serious
illness" because he presented neither medical evidence from
a doctor nor a declaration from his employer. Id. In dissent,
Board Member Rosenberg stated, "the majority's suggested
requirements impose an excessively high evidentiary test to
be met by a respondent who provided sworn statements con-
cerning his illness, explaining its severity and why he did not
seek medical treatment." Id. (Rosenberg, Board Member, dis-
senting). Citing new requirements imposed by the majority to
meet this test, as to which Singh had no notice, Board Mem-
ber Rosenberg concluded that the case should be remanded to
allow Singh to comply with the "newly enunciated criteria."

Singh timely petitioned for review.2


We review the denial of a motion to reopen for abuse of
discretion. See INS v. Doherty, 502 U.S. 314, 324 (1992);
Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996). Unless the
BIA acted "arbitrarily, irrationally, or contrary to law," we
should not disturb the BIA's ruling. Edie-Kahayon v. INS, 86
F 3d 147, 149 (9th Cir. 1996). We review de novo the BIA's
"determination of purely legal questions regarding the
requirements of the Immigration and Nationality Act. " Arrieta
v. INS, 117 F.3d 429, 430 (9th Cir. 1997) (quoting Tedeeva
v. INS, 88 F.3d 826, 827 (9th Cir. 1996)).

[1] An order for deportation entered in absentia may be
rescinded "if the alien demonstrates that the failure to appear
2 Singh also filed a motion to reconsider, which is currently pending in
the BIA. We may review the denial of a motion to reopen while the
motion to reconsider is pending. See Escobar-Ramos v. INS, 927 F.2d 482
(9th Cir. 1990); Dhanqu v. INS, 812 F.2d 455 (9th Cir. 1987).


was because of exceptional circumstances." 8 U.S.C.
S 1252b(c)(3)(A). The statute defines "exceptional circum-
stances" as "circumstances (such as serious illness of the alien
or death of an immediate relative of the alien, but not includ-
ing less compelling circumstances) beyond the control of the
alien." S 1252b(f)(2). The statutory language itself is not
imbued with any additional meaning. Nor does the legislative
history provide much elaboration upon the meaning of the
statutory language:

      Among the few explicit statements of congressional
      intent in the history of section 242B [8 U.S.C.
      S 1252b (1996)] is a sentence in the conference com-
      mittee report regarding the proper interpretation of
      the statutory standard justifying nonappearance:
      "Additionally, the conferees expect that in determin-
      ing whether an alien's failure to appear was justifi-
      able, the Attorney General will look at the totality of
      the circumstances to determine whether the alien
      could not reasonably have been expected to appear."

Iris Gomez, The Consequences of Nonappearance: Interpret-
ing New Section 242B of the Immigration and Nationality Act,
30 San Diego L. Rev. 75, 151 (1993) (citing H. R. Rep., No.
955, 101st Cong., 2d Sess. 132 (1990)). As a result, the body
of law interpreting "exceptional circumstances " looks to the
particularized facts presented in each case. See Sharma v. INS,
89 F. 3d 545 (9th Cir. 1996) (petitioner's 45 minutes to 1 hour
tardiness, because of traffic difficulties, did not qualify as an
exceptional circumstance beyond the control of petitioner);
Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999) ("exceptional
circumstances" existed where the petitioner missed her hear-
ing because she was waiting for her interpreter to return to his
office); de Morales v. INS, 116 F.3d 145 (5th Cir. 1997) (no
exceptional circumstances when petitioners never appeared at
their hearing because their car broke down halfway to the
courthouse; they returned home rather than proceeding to


court, and made a cursory attempt to find the court's phone

[2] Here, the BIA denied the motion to reopen because of
lack of evidence. The BIA ruled that "[a]ssuming that a
twisted foot can amount to exceptional circumstances," i.e.
"serious illness," Singh had not provided "sufficient evidence
that his injury falls into this category." See In re B-A-S-,
Interim Decision 3350. Yet the regulation, 8 C.F.R.
S 3.2(c)(1), provides only that "[a] motion to reopen proceed-
ings . . . shall be supported by affidavits or other evidentiary
material." Singh complied with this section when he
presented his affidavit, and that of a witness, to support his
claim that his injury rose to the level of exceptional circum-
stances. At the time when Singh submitted his evidence, nei-
ther the statute, the regulations, nor the applicable case law
required a petitioner to produce an affidavit from a doctor or
his employer, or to contact the court immediately. 3 The BIA
imposed these requirements upon Singh when it relied exclu-
sively on Singh's failure to provide any medical evidence or
documentary evidence from his employer, or to contact the
Immigration Court to inform it of his inability to appear.
Singh had no notice that he was required to provide any of
these specific pieces of evidence which the BIA viewed as
fatal to his petition, and was given no opportunity to provide

[3] We have held that the BIA may not rely on newly-
created evidentiary standards to deny a motion to reopen a
deportation proceeding held in absentia. See Arrieta v. INS,
117 F.3d 429, 432 (9th Cir. 1997). In Arrieta , the petitioner
failed to appear at the proceeding and moved to reopen her
case, contending that she did not receive notice of her hearing
as required by statute. See id.; see also 8 U.S.C.
S 1252b(a)(2). In support, Arrieta proffered her letter and a
letter from her brother stating that the certified mailing notice
3 Nor do they today. See 8 C.F.R. S 3.23.


(which had been returned to the Office of the Immigration
Judge marked "attempted") was never delivered to her at her
mailing address. See Arrieta, 117 F.3d at 430. The Immigra-
tion Judge and the BIA determined that she had failed to over-
come the presumption of effective delivery of the certified
notice of hearing because she failed to provide substantial evi-
dence such as "documentary evidence from the Postal Ser-
vice, third party affidavits, or other similar evidence"
demonstrating improper delivery that was not her fault. Id.
We held that the BIA erred by imposing a new standard of
proof upon Arrieta, reasoning "that Arrieta certified to the
truth of her letter, and when she submitted it to the Immigra-
tion Judge, Grijlava [a BIA decision announcing the new
standard of proof] had not yet been decided and there was no
established standard of proof required before the BIA for
Arrieta to follow." 117 F.3d at 432 (citing In re Grijalva,
Interim Decision 3246 (BIA 1995) (establishing standard of
proof required to demonstrate the affirmative defense of non-
delivery or improper notice)).

The rationale of Arrieta controls the disposition of this
case. As in Arrieta, the BIA relied on a previously unan-
nounced evidentiary standard to reject Singh's appeal. Singh
had no notice that he would be required to provide "medical
evidence" or additional declarations, evidentiary requirements
the BIA imposed for the first time when it dismissed Singh's

The BIA's action in this case was even more egregious,
however, because in a decision handed down the same day as
Singh's, the BIA adhered to an evidentiary standard in con-
flict with that imposed upon Singh. See In re J-P-, Interim
Decision 3348 (BIA 1998) (en banc). In that case, the BIA
found "the lack of medical evidence or other evidence estab-
lishing, in detail, the seriousness of the respondent's illness to
be one of the several factors" in determining if the burden of
proof has been met. Id. (emphasis added). The BIA there also
ruled that, in lieu of evidence from a doctor, a "claim may


[be] substantiated, through detailed affidavits from respondent,4
roommates, friends, and co-workers, attesting to the extent of
his disability and the remedies used." Id. 5 Singh in fact
presented his own declaration, as well as a friend's corrobo-
rating declaration -- proof which may well have satisfied the
In re J-P- standard. Cf. Eide-Kahayon, 86 F.3d at 149 (quot-
ing Israel v. INS, 785 F.2d 738, 740 (9th Cir. 1986)) ("The
BIA acts arbitrarily when it disregards its own precedents and
policies without giving a reasonable explanation for doing

[4] Fundamental fairness requires that Singh be given an
opportunity to satisfy the BIA's evidentiary requirements. We
have held that "[d]ue process requires that an alien receive a
full and fair hearing." Jacinto v. INS, No. 98-70321, 2000 WL
271896 (9th Cir. Mar. 14, 2000); see Colmenar v. INS, No.
98-70422, 2000 WL 376671, at *4 (9th Cir. Apr. 14, 2000).
A full and fair hearing includes "a reasonable opportunity to
present evidence." Colmenar, 2000 WL 376671 at *4; cf.
Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1998)
("the BIA must provide a petitioner with a reasonable oppor-
tunity to offer an explanation of any perceived inconsistencies
that form the basis of a denial of asylum"); Castillo-Villagra
v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992) ("the Board erred
in taking notice of the change of government without provid-
ing the petitioners an opportunity to rebut the noticed facts");
see also 8 U.S.C. S 1252(b)(3) (1994) ("the alien shall have
a reasonable opportunity to examine the evidence against him
[and] to present evidence on his own behalf"). The failure to
give notice and an opportunity to respond in the face of ever-
4 Furthermore in In re Kanwaljit Singh, No. A70 942 039, 1997 WL
467622 (BIA Aug. 11, 1997), the BIA concluded that "exceptional cir-
cumstances" were established when Kanawljit Singh "submitted a signed
affidavit evidencing that his step-son's illness was responsible" for his tar-
diness. In Singh's case the BIA found a similar affidavit insufficient.
5 The BIA nevertheless rejected J-P-'s claim because he had not submit-
ted any of these possible forms of evidence. See J-P-, 1998 WL 299471.


shifting evidentiary standards denied Singh a full and fair
hearing. As a result Singh was prejudiced6  because the evi-
dence he presented appears to be sufficient under either of the
two other evidentiary standards contemporaneously employed
by the BIA.7 See Campos-Sanchez, 164 F.3d at 450 (stating
that a denial of full and fair hearing that results in prejudice
violates due process); Colmenar, 2000 WL 376671 at *4
("prejudice . . . means that the outcome of the proceeding may
have been affected by the alleged violation."). Moreover, had
Singh been notified of the newly announced evidentiary
requirements, he may very well have been able to secure the
necessary affidavits or declarations.

Because the BIA improperly announced a new evidentiary
standard in Singh's case,8 and, as a result, denied Singh his
due process right to a full and fair hearing, we grant the peti-
tion and remand to the BIA with instructions to remand for
further proceedings before the immigration judge consistent
with this disposition.


6 Because we must grant the petition and remand under Arrieta, Singh
need not have demonstrated prejudice sufficient to establish a due process
7 See J-P-, Interim Decision 3348 (stating that a "claim may [be] sub-
stantiated, through detailed affidavits from respondent, roommates,
friends, and co-workers, attesting to the extent of his disability and the
remedies used."); Kanwaljit Singh, 1997 WL 467622 (finding exceptional
circumstances when alien "submitted a signed affidavit evidencing that his
step-son's illness was responsible" for his tardiness).
8 The BIA also erred when it considered counsel's statements in briefs
as evidence of Singh's inconsistency. See Matter of Ramirez-Sanchez, 17
I. & N. Dec. 503 (BIA 1980) (statements in motions are not evidence and
are therefore not entitled to evidentiary weight).