Tuesday, August 01, 2006

Cabrera-Perez: IJ May Not Order Deportation For Arriving In Court Slightly Late

Cabrera-Perez v. Gonzales
No. 05-3896
August 1, 2006

Immigration judges must remember they are appointed, not anointed.

The Third Circuit in very strong language ordered that immigration judges must allow someone in deportation proceedings to be heard in their case even if they were slightly tardy for a hearing. In this case, the government frequently warned someone that she had to bring witnesses at her next, major hearing. A witness got to her house late so they set off from home a bit late and got a bit lost driving in downtown Newark, NJ. Her attorney arrived exactly on time but by the time she got to the courtroom, she was around 20 minutes late. The IJ had ordered her deported and when she asked the court staff to get the judge to try to be heard, they refused. They tried to reopen the case and, depressingly, the IJ refused to reopen it and the BIA upheld the judge's decision on appeal. The case had to go all the way up to the Third Circuit to do justice and allow her case to be heard on the merits.

Sadly, this is not the first time someone was ordered deported for arriving slightly late, the IJ refused to reopen, the BIA affirmed, and a circuit court had to step in and do the right thing. Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999) (reopening where 20 minutes late but IJ was still in the courtroom working on other cases); Alarcon-Chavez v. Gonzales, 403 F.3d 343 (5th Cir.
2005) (reopening where 20 minutes late and IJ was either still in the courtroom or had just left and still nearby); Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999) (reopening where two hours late due to late arrival of personally-hired interpreter after IJ failed to get an interpreter at prior court appearance that led the immigrant to think she had to bring her own interpreter).

The legal rule is that due process rights exist in immigration cases and the IJ and BIA abused their discretion by refusing to reopen the case for minimal tardiness when the IJ was either still in the courtroom or had recently left but was still nearby. Especially when there was no history of the person arriving late in the case.

The Third Circuit used strong language, saying they would "expect nothing less from immigration judges who sit in this circuit" to reopen such cases and that just like the Fifth Circuit said in Alarcon-Chavez, immigration judges must "remember they are appointed, not anointed."


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