Sunday, April 27, 2008

Cozac (not precedential): Not Appearing Due To Fear Is Not Exceptional Circumstance, Even If Lawyer Deficient

Cozac v. Mukasey, No. 07-1070 (3d Cir. Apr. 22, 2008) (not precedential)
275 Fed. Appx. 109, 2008 WL 1801092
Judges McKee and Rendell with visiting judge A. Wallace Tashima (senior judge of the Ninth Circuit)

If you miss a court appearance that you knew about, the regulations offer a chance to reopen the case through rescinding the in absentia order as long as you can show an exceptional circumstance for not appearing.

The Third Circuit held that just pointing out your lawyer was deficient is not enough. If the reason you did not go to court was fear of deportation (unrelated to your lawyer's performance), that is not an exceptional circumstance.

As an aside, the Third Circuit mentioned that ineffective assistance of counsel can constitute an exceptional circumstance under 8 U.S.C. § 1229a(e)(1) where counsel made misrepresentations to the alien about the need to attend the removal hearing, the time or place of the removal hearing, or the consequences of not attending the hearing. See Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir. 2005) (reasoning that attorney’s telling immigrant that if he went to court without an attorney he would be deported would constitute ineffective assistance rising to the level of an exception circumstance).

For Cozac, Lawrence H. Rudnick of Steel, Rudnick & Ruben in Philadelphia.  For the government, Paul F. Stone and Ada E. Bosque of OIL.


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