The Board of Immigration Appeals has determined that an Immigration Judge has discretion to rescind an in absentia removal order when the respondent was late for her court hearing to severe inclement weather.
“In determining whether an alien has established exceptional circumstances, the “totality of the circumstances pertaining to the alien’s case should be considered. How late the alien arrives for her scheduled court appearance is a significant factor to consider, along with the reason(s) for her tardiness, in the totality of the circumstances. The totality of the circumstances approach may also take into account any other factors relevant to the alien’s individual case. For example, an alien’s young age may be relevant where there are multiple impediments to attending the removal hearing. Other factors, such as prior attendance at hearings, eligibility for relief from removal, and promptness in filing the motion to reopen may shed light on whether the alien intended to appear on time or otherwise had an incentive to do so.”
“In Matter of S-A-, we did not create a per se rule that traffic conditions cannot be an acceptable reason for a tardy appearance at a hearing. Instead, this Board held that an alien’s uncorroborated general statements will generally be insufficient to meet the burden of proof to establish reasonable cause for a late appearance. We reaffirm this holding. We also take this opportunity to clarify and extend the evidentiary framework in Matter of S-A- to proceedings falling under the exceptional circumstances standard, because this Board has not yet addressed this standard.“
“Pursuant to our de novo review, we conclude that the female respondent has established exceptional circumstances for her tardy appearance under the totality of the circumstances. Where an alien appears late to a removal hearing as a result of weather and traffic conditions, he or she may establish exceptional circumstances that would warrant reopening the removal proceedings where the extent of the tardiness was reasonable given the cause of the delay, the circumstances causing the tardiness were appropriately exceptional on a case-by-case basis, the weather and traffic conditions were not foreseeable, and the alien provided sufficient documentation corroborating the cause of the tardiness. Other factors, such as any prior affirmative application for relief, previous attendance at Immigration Court hearings, and other evidence indicating that the alien intended to appear at the hearing, may support an exceptional circumstances claim.”
“On this record, we conclude that she presented appropriately exceptional circumstances for her tardiness. As the female respondent does not drive, she hired a professional driver, upon whom she relied to arrive at the courtroom on time. Despite this planning, she was tardy because of a snow storm, which caused multiple accidents and severe traffic on several major thoroughfares in Ohio on the morning of her hearing. Moreover, weather reports indicated that the temperature was lower than usual for the time of year. These severe weather and traffic conditions are distinguishable from the ordinary or foreseeable traffic delays at issue in Matter of S-A-. Further, the female respondent’s corroborating information—including the affidavits and the weather and traffic reports—provided sufficient details documenting the reasons for her tardiness.”
The full text of Matter of S-L-H- & L-B-L can be found here:
https://www.justice.gov/eoir/page/file/1408006/download
