Unpublished Disposition, 923 F.2d 861 (9th Cir. 1990)

MEMORANDUM^** 

Benito De Anda-Escoto ("Escoto"), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order upholding an immigration judge's ("IJ") denial of Escoto's motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1105a and deny Escoto's petition for review.

* Background

In June 1988, while serving a prison sentence for assault with a deadly weapon, Escoto was issued an order to show cause why he should not be deported, pursuant to section 241(a) (1) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1251(a) (1), for entry into the United States without a valid immigrant visa under section 212(a) (20) of the INA, 8 U.S.C. § 1182(a) (20).

At a deportation hearing held on August 18, 1988, Escoto, represented by counsel, conceded deportability and was granted a continuance in order to apply for registry, suspension of deportation, and voluntary departure. The IJ continued the hearing until September 16, 1988, by which time Escoto was to have filed the necessary applications.

At the September 16, 1988 hearing, Escoto's counsel appeared, but Escoto did not, and no applications were filed. At counsel's request, the IJ continued the proceedings until September 22, 1988. On September 22, 1988, Escoto's counsel again appeared without his client and without the applications. The IJ ordered Escoto deported in absentia.

Escoto subsequently submitted a motion to reopen the proceedings along with the necessary applications and supporting documents. By affidavit, Escoto stated while he was aware of the September 16, 1988 application deadline, his failure to appear or to submit the required applications was due to two incidents. The first incident occurred on August 29, 1988 when the restaurant he owns was robbed at gun point. Escoto stated that he was badly shaken by the robbery. The second incident occurred after the robbery when he called his attorney's office and misunderstood a secretary to say that a one-month extension of the application deadline would be obtained.

Escoto also acknowledged that his attorney apparently tried to contact him by telephone prior to both hearings. Escoto stated, however, that he did not receive any telephone calls or messages from his attorney, and he did not receive the attorney's letter, dated September 19, 1988, informing him of the September 22, 1988 hearing until September 23, 1988.

The IJ denied Escoto's motion to reopen, finding that Escoto's claims were not plausible. The IJ also found that Escoto had not established prima facie eligibility for registry, suspension of deportation, or voluntary departure.¹ 

The BIA upheld the IJ's denial of his motion to reopen on the ground that Escoto failed to establish reasonable cause for his failure to appear at his deportation hearing. Escoto timely petitions for review.

II

Standard of Review

We review the BIA's decision not to reopen a deportation proceeding for an abuse of discretion. See INS v. Abudu, 485 U.S. 94, 108 (1988); Zacarias v. INS, 908 F.2d 1452, 1459 (9th Cir. 1990) (quoting Abudu), as amended, No. 88-7507, (9th Cir. December 19, 1990); accord Reyes-Arias v. INS, 866 F.2d 500, 502-03 (D.C. Cir. 1990) (whether BIA erred in not reopening hearing after alien failed to appear at two hearings reviewed for abuse of discretion).

III

Merits

Escoto contends that he demonstrated "reasonable cause" for his failure to appear or to timely file his applications at either the September 16, 1988 or the September 22, 1988 hearings, and that, consequently, the BIA abused its discretion in upholding the IJ's denial of his motion to reopen. This contention lacks merit.

Section 242(b) of the INA provides in pertinent part:

If any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails or refuses to attend or remain in attendance at such proceeding, the [IJ] ... may proceed to a determination in like manner as if the alien were present.

8 U.S.C. § 1252(b). See generally INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984) (" [t]he respondent must be given a reasonable opportunity to be present at the proceeding, but if the respondent fails to avail himself of that opportunity the hearing may proceed in his absence"); United States v. Dekermenjian, 508 F.2d 812, 814 (9th Cir. 1974). If, however, the alien can show "reasonable cause" for his failure to appear, he is entitled to have his case reopened and decided on its merits. See Matter of Ruiz, Int.Dec. 3116 (BIA 1989).

Here, Escoto's explanation that he was confused by the robbery and misunderstood a secretary at his attorney's office to say that a one-month extension on the application deadline would be obtained does not show reasonable cause. First, the robbery took place two weeks before the September 16, 1988 hearing. Second, although Escoto stated that he was badly shaken and upset by the robbery, he did not specifically claim that he was personally confronted by the gunman. Third, Escoto failed to identify the secretary or offer any corroboration, explanation, or details of his alleged misunderstanding. Finally and most importantly, it appears from the record that Escoto was in contact with his attorney on September 14, 1988--two days before the scheduled hearing--at which time both Escoto and his attorney signed a Form G-28 notice of appearance and a Form I-485 application for permanent residence.

Given the presence of these documents, signed by Escoto and his attorney and dated September 14, 1988, the BIA did not abuse its discretion in finding that Escoto did not demonstrate reasonable cause for his failure to appear at the September 16, 1988 hearing or to timely submit his applications. See, e.g., Abudu, 485 U.S. at 111; accord Reyes-Arias, 866 F.2d at 502-03 (denial of motion to reopen upheld when IJ ordered an alien deported in absentia after the alien failed to appear at two deportation hearings due to alien's misunderstanding).

Moreover, when Escoto failed to appear at the September 16, 1988 hearing, the IJ, apparently at counsel's request, rescheduled the hearing until September 22, 1988. Thus, Escoto had additional time and a second opportunity to appear or to file his applications. Escoto failed to remain in contact with his attorney or to provide a means by which his attorney could contact him regarding the second hearing. Thus, he failed to demonstrate reasonable cause for his absence from the September 22, 1988 hearing. See, e.g., Reyes-Arias, 866 F.2d at 503 (in upholding the BIA's decision not to reopen, the court observed that the alien had not demonstrated reasonable cause for his failure to appear when the alien's counsel appeared at the scheduled hearing, but the alien "elected, perhaps entirely through ignorance and misunderstanding, to remain out of touch with his own counsel" and did not appear at the hearing).

PETITION FOR REVIEW DENIED.