Matter of Singh

The respondent has filed a timely appeal of an Immigration Judge’s Sep-

tember 9, 1996, denial of his motion to reopen to rescind an in absentia depor-

tation order entered on March 8, 1996. The appeal will be sustained. The

request for oral argument is denied. 8 C.F.R. § 3.1(e) (1997).

On March 8, 1996, an Immigration Judge ordered the respondent deported

to India in absentia after the respondent failed to appear for his initial depor-

tation hearing. On July 9, 1996, the respondent submitted a motion to reopen

and requested a stay of deportation. He stated in this motion that he is the ben-

eficiary of a visa petition filed on his behalf by his United States citizen wife

and that his step-son’s illness on the day of his initial hearing prevented him

from appearing at the hearing at the scheduled time. The Immigration Judge

denied the motion on July 23, 1996, on evidentiary grounds, stating that the

respondent had failed to provide affidavits in support of his claim of reopen-

ing based on exceptional circumstances.

1 On our own motion, we amend the June 26, 1997, order in this case. The amended order makes editorial changes consistent with designating the case as a precedent.

Subsequently, on August 21, 1996, the respondent filed with the Immigra-

tion Court a request to reconsider the previously filed motion to reopen. He

attached to this motion several exhibits, including a completed Application to

Register Permanent Residence or Adjust Status (Form I-485) and a signed

affidavit by the respondent in which he stated that he was 15 minutes late for

his deportation hearing because he did not want to leave his ill step-son unat-

tended at home and had to wait for his wife to return from a trip to the market

where she had gone to buy medication for their child. The Immigration and

Naturalization Service filed a memorandum indicating it did not oppose

reopening.

On September 9, 1996, the Immigration Judge entered a decision denying

reopening, stating that he lacked jurisdiction under Matter of Shaar, 21 I&N

Dec. 541 (BIA 1996), as a result of the expiration of the respondent’s volun-

tary departure period. It is this denial that is being appealed.

In the Notice of Appeal and his accompanying brief, the respondent

asserts that the Immigration Judge erroneously denied reopening. The

respondent contends that, contrary to the decision of the Immigration Judge,

Matter of Shaar, supra, does not bar reopening, as the respondent had never

been granted voluntary departure.

We agree with the respondent. The Immigration Judge’s conclusion that

he was divested of jurisdiction over the motion to reopen and barred from

granting reopening by this Board’s decision in Matter of Shaar, supra, is

incorrect. In Matter of Shaar we held that neither the filing of a motion to

reopen prior to the expiration of a respondent’s voluntary departure period

nor the Immigration Judge’s failure to adjudicate the motion prior to the expi-

ration of that period constitutes exceptional circumstances on which reopen-

ing may be based.

In the instant case, however, overstay of a voluntary departure period is

not an issue. The respondent’s March 8, 1996, in absentia deportation order

does not provide him with a period to voluntarily depart the United States.

Instead, it orders his immediate deportation to India. Accordingly, the

respondent could not have remained in the United States beyond his period of

voluntary departure because this form of relief was never granted. Therefore,

Matter of Shaar, supra, is not directly applicable to the facts at hand and does

not preclude reopening based on exceptional circumstances.

Turning to the merits of the respondent’s motion to reopen, we note that

section 242B(c)(3) of the Immigration and Nationality Act, 8 U.S.C.

§ 1252b(c)(3) (1994), provides in relevant part that a motion to reopen to

rescind an in absentia deportation order may be granted if exceptional circumstances are shown and the motion is filed within 180 days of the in

absentia deportation order. Section 242B(f)(2) of the Act encompasses com-

pelling circumstances such as those described by the respondent.

The respondent has submitted a signed affidavit evidencing that his

step-son’s illness was responsible for his 15-minute delay in arriving at his

deportation hearing. Moreover, the Service does not contest the fact that

exceptional circumstances have been established, nor does it oppose reopen-

ing the instant matter. Under these circumstances, we conclude that the

respondent has established exceptional circumstances which merit reopen-

ing. Finally, the respondent’s August 21, 1996, motion was filed within the

statutorily required 180-day period following his March 8, 1996, in absentia

deportation order. As the statutory requirements for reopening have been

met, the appeal will be sustained and reopening will be granted.

ORDER: The appeal is sustained, the proceedings are reopened,

and the record is remanded to the Immigration Judge for further proceedings.