United States Court of Appeals Fifth Circuit F I L E D REVISED APRIL 20, 2005 IN THE UNITED STATES COURT OF APPEALS March 14, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III __________________________ Clerk

No. 04-60242 __________________________

LUIS ENRIQUE ALARCON-CHAVEZ,

Petitioner,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

___________________________________________________

Petition for Review of an Order of the Board of Immigration Appeals (BIA No. A78 976 454) ___________________________________________________

Before JONES, WIENER, and CLEMENT, Circuit Judges.

WIENER, Circuit Judge:

Petitioner Luis Enrique Alarcon-Chavez (“Petitioner”) appeals

the decision of the Board of Immigration Appeals (“BIA”) upholding

without reasons or opinion, both the Immigration Judge’s (“IJ”)

order of deportation in absentia and the IJ’s denial of

Petitioner’s motion to reopen. We grant the petition, reverse both

orders, and remand with instructions.

I. FACTS AND PROCEEDINGS

A citizen of Cuba, Petitioner crossed the border at

Brownsville, Texas in March 2002 without proper entry documents and was placed in removal proceedings. Three days later, the

Immigration and Naturalization Service, now Department of Homeland

Security (“DHS”), found that Petitioner had a credible fear of

returning to Cuba and paroled him into the United States the

following day. Petitioner subsequently applied for asylum,

withholding of removal, and relief under the Convention Against

Torture.

Although Petitioner had appeared timely for several prior

hearings, on January 30, 2003 he arrived in the courtroom twenty

minutes late for his 8:30 a.m. asylum hearing. According to his

uncontradicted affidavit testimony, Petitioner had been residing in

Austin and making the trip to San Antonio by car for all previous

hearings. For those hearings, Petitioner’s uncle had driven him to

the San Antonio courthouse. On January 30th, however, Petitioner

had to travel on his own without help from his uncle.

Traveling on I-35, Petitioner intended to take the “Corpus

Christi” exit, but mistakenly took the adjoining “N. Alamo” exit,

because he had become confused in the high-density, rush-hour

traffic on the interstate. This resulted in his heading in the

wrong direction for a brief period. As a result, Petitioner

arrived at the courthouse at 8:44, while the IJ was still on the

bench. By the time Petitioner entered the courtroom at 8:50,

however, the IJ had declared that Petitioner had “failed to appear”

for the hearing, found him removable, issued an order of

deportation in absentia, and exited the courtroom. Petitioner

-2- states, and the government does not contest, that he arrived at the

courtroom no more than five minutes after the IJ had issued his

order and left; and that the IJ, who by then was just across the

hall from the courtroom, was notified immediately of Petitioner’s

presence but refused to return and proceed with the hearing.

Petitioner promptly filed a timely motion to reopen the

removal proceeding and to rescind the in absentia removal order.

The IJ denied the motion, ruling that Petitioner did not establish

“exceptional circumstances” for his “failure to appear.” On appeal

to the BIA, the IJ’s decision was affirmed without opinion.

Petitioner seeks review of the BIA’s decision. He argues in

the alternative that (1) as a matter of law his arrival at the

courtroom twenty minutes late was not a “failure to appear,” and

(2) even if it were, the IJ and BIA erred in denying his motion to

reopen because he had demonstrated exceptional circumstances for

his failure to appear at the scheduled hearing precisely at 8:30

a.m. As we conclude that it was legal error, and therefore abuse

of discretion, to hold that Petitioner’s twenty-minute tardiness

constituted a failure to appear, we do not reach Petitioner’s

alternative argument regarding the question of exceptional

circumstances.

II. ANALYSIS

We generally review only the BIA’s decision in immigration

proceedings because the BIA conducts a de novo review of the

-3- administrative record.1 When the BIA affirms the IJ’s decision

without an opinion, however, we review the IJ’s decision.2 The

denial of a motion to reopen is reviewed for abuse of discretion,

and the determinations of law are reviewed de novo.3 It is by

definition an abuse of discretion when an IJ makes an error of law4

or “has considered the wrong factors in applying his discretion

(the judgment call was made as to issues or factors not within the

scope of his discretionary powers).”5

An order of removal may be entered in absentia if (1) the

alien is properly notified of the hearing date and time, yet fails

to attend the scheduled hearing, and (2) the DHS is able to

establish that the alien is removable.6 We are convinced beyond

cavil that there was no failure to attend in this instance, so we

grant the petition. We recognize the limited nature of our review

of determinations by an IJ or the BIA, but we are not left

completely fettered and unable to address what amounts to a clear

abuse of discretion —— an arbitrary exercise of judicial fiat at

the expense of a powerless alien whom the DHS had already found to

1 De Morales v. INS,

(5th Cir. 1997). 2 Mikhael v. INS,

(5th Cir. 1997). 3 De Morales,

. 4 United States v. Lipscomb,

(5th Cir. 2002) (quoting Koon v. United States,

, (1996)). 5

at 339 (quoting 1 STEVEN ALAN CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS OF REVIEWS § 4.01(A) (3d ed. 1999). 6 8 U.S.C. § 1229a(b)(5)(A). -4- have a credible fear of returning to Cuba.

Petitioner made the unfortunate but fully understandable

mistake of taking the wrong exit off the busy interstate on the way

to his hearing, and as a result was a mere twenty minutes late in

arriving in the courtroom. He had been on time to all of his prior

hearings, a fact noted both by Petitioner and by the government in

its brief. On arrival, he made every effort to get the IJ to

resume his hearing, and when he learned that the IJ steadfastly

refused to conduct the hearing, Petitioner promptly filed a motion

to reopen a mere five days later.

This is not even a case of a petitioner who was one hour late7

or who made no effort to avoid entry of an in absentia order then

failed to contact the court for more than two weeks after the

deportation order was entered.8 Rather it is an example of what

the late Chief Judge of this court, John R. Brown, frequently

referred to as “the curse of the robe” when cautioning judges to

remember that they are appointed, not anointed.

Our holding today will not require IJs to tolerate

substantially tardy litigants, or to entertain late attempts to

excuse true failures to appear. When, however, (1) there is no

failure but only a slight tardiness, (2) the IJ is either still on

the bench or recently retired and still close by, and (3) the time

7 See Sharma v. I.N.S.,

(9th Cir. 1996). 8 See De Morales,

; see also Chen v. I.N.S.,

(2d Cir. 2003) (unpublished) (petitioner waited almost a month after the scheduled hearing date to move to reopen). -5- of the immigrant’s delayed arrival is still during “business

hours,” it is an abuse of discretion —— if not worse —— to treat

such slight tardiness as a non-appearance.9 “Given the severity of

the consequence, the minimal procedural interference, and the

serious claim for relief from deportation”10 via asylum, the refusal

of the IJ to step back across the hall and into the hearing room to

consider Petitioner’s case is unacceptable. The applicable statute

does not encompass such a draconian result from a momentary de

minimis delay.11

III. CONCLUSION

We GRANT the petition and REMAND to the BIA with instructions

to remand this matter for Petitioner to present his claims, leaving

to the discretion of the BIA whether to remand to a different IJ.

9 See Jerezano v. I.N.S.,

(9th Cir. 1999). Cf. Nazarova v. I.N.S.,

(7th Cir. 1999) (suggesting that it is an abuse of discretion for an IJ to treat a late appearance as a non-appearance when the delay is brief and the disruption minimal); Romani v. I.N.S.,

, 739 (9th Cir. 1998) (when the petitioners were in the courthouse but went to the wrong courtroom, it was not a “failure to appear” under the predecessor statute to § 1229a(b)(5)(A)); Chen,

(sympathizing with the holdings in Jerezano and Nazarova and suggesting that in appropriate circumstances the second circuit might hold the same).

That the IJ was still on the bench at the time the petitioner arrived in Jerezano is a distinction without a difference; a man’s fate should not turn on whether he had the good fortune of other hearings being scheduled to begin subsequent to his own. 10 Thomas v. I.N.S.,

(1st Cir. 1992) (Breyer, J., dissenting). 11 Nazarova,

. -6- -7-