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hearingmotionasylumdeportation
hearingmotionasylumdeportation

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Fajardo v. Immigration and Naturalization Service

Facts

Normita Santo Domingo Fajardo, a native of the Philippines, entered the U.S. in 1989 as a visitor and did not depart. After her application for political asylum was denied in 1993, she was ordered deported in absentia due to her failure to appear at her hearing, which she claimed was due to the misconduct of individuals she had hired for assistance. Fajardo filed a second motion to reopen her case in 1998, citing exceptional circumstances due to the alleged misconduct of her previous representatives.

Normita Santo Domingo Fajardo, a native of the Philippines, entered the U.S. in 1989 as a visitor and did not depart. After her application for political asylum was denied in 1993, she was ordered deported in absentia due to her failure to appear at her hearing, which she claimed was due to the misconduct of individuals she had hired for assistance. Fajardo filed a second motion to reopen her case in 1998, citing exceptional circumstances due to the alleged misconduct of her previous representatives.

Issue

Is Fajardo's claim barred by the 180-day limitation period, and if not, has she shown exceptional circumstances supporting her motion to rescind the in absentia deportation order and reopen her deportation proceedings?

Is Fajardo's claim barred by the 180-day limitation period, and if not, has she shown exceptional circumstances supporting her motion to rescind the in absentia deportation order and reopen her deportation proceedings?

Rule

Under INA 242B(c)(3)(A), 8 U.S.C. 1252b(c)(3)(A), an in absentia deportation order may be rescinded if the motion to reopen is filed within 180 days of the order and the petitioner can show her failure to appear was due to 'exceptional circumstances.'

Under INA 242B(c)(3)(A), 8 U.S.C. 1252b(c)(3)(A), an in absentia deportation order may be rescinded if the motion to reopen is filed within 180 days of the order and the petitioner can show her failure to appear was due to 'exceptional circumstances.'

Analysis

The court found that the immigration judge's conclusion that Fajardo's motion to reopen was precluded because it was her second motion was clearly erroneous. The court held that the 180-day limitation period for filing motions to reopen should be tolled due to the deceptive actions of the individuals Fajardo had relied upon for assistance, which constituted exceptional circumstances.

The court found that the immigration judge's conclusion that Fajardo's motion to reopen was precluded because it was her second motion was clearly erroneous. The court held that the 180-day limitation period for filing motions to reopen should be tolled due to the deceptive actions of the individuals Fajardo had relied upon for assistance, which constituted exceptional circumstances.

Conclusion

The IJ's conclusion that Fajardo's motion to reopen was precluded because it was her second motion is clearly erroneous as a matter of law. The case is remanded to the BIA to determine whether Serra's failure to inform Fajardo of her need to attend her deportation hearing constitutes 'exceptional circumstances' excusing her failure to appear.

The IJ's conclusion that Fajardo's motion to reopen was precluded because it was her second motion is clearly erroneous as a matter of law. The case is remanded to the BIA to determine whether Serra's failure to inform Fajardo of her need to attend her deportation hearing constitutes 'exceptional circumstances' excusing her failure to appear.

Who won?

Fajardo prevailed in the case because the court found that the immigration judge's refusal to consider the actions of her representatives as a basis for reopening her proceedings was erroneous.

Fajardo prevailed in the case because the court found that the immigration judge's refusal to consider the actions of her representatives as a basis for reopening her proceedings was erroneous.

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