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United States Court of Appeals,
Fifth Circuit.
No. 95-60795.
Eugene WELLINGTON, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
April 1, 1997.
Petition for Review of an Order of the Board of Immigration
Appeals.
Before JOLLY, JONES and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Eugene Wellington asks this court to review and reverse the
decision of the Board of Immigration Appeals (the "BIA") affirming
an immigration judge's decision to deny Wellington's motion to
reopen his deportation proceedings. Finding a lengthy list of
errors in the processing of Wellington's application, we conclude
that the BIA abused its discretion when it denied Wellington's
motion to reopen.
I
Wellington was born in Zaire, but is a citizen of Sierra
Leone. Wellington first entered the United States as a visitor in
July 1986. In August 1989, Wellington married Sandra Caridad
Baptist, who was then an alien admitted for lawful permanent
residence. Wellington and his wife have two daughters together,
ages six and seven, both of whom were born U.S. citizens.
One year later, in August 1990, the Immigration and
Naturalization Service ("INS") placed Wellington in deportation
1

proceedings. In November 1990, Mrs. Wellington filed a petition to
have Wellington classified as an "immediate relative" for
immigration purposes. The petition was approved on February 1,
1991.1 In the meantime, Wellington's deportation hearing was twice
rescheduled, ultimately to July 11, 1991. At the July 11 hearing,
Wellington conceded that he was deportable for violating the terms
of his visitor's status by working as a shoe salesman. The
immigration judge ordered Wellington deported, but permitted
voluntary departure by June 16, 1992.
By that date, no immigrant visa had become available.
Wellington did not depart as required. Wellington's wife became a
naturalized citizen on September 16, 1992. Because of his wife's
naturalization, Wellington was no longer subject to a waiting list,
and became immediately eligible for an immigrant visa. 8 U.S.C. §
1151(b)(2)(A)(i).
On March 4, 1993, Wellington filed a motion to reopen his
deportation proceedings on the ground that he was now the
beneficiary of an immediate relative immigrant visa, and was
therefore eligible for adjustment of status. INS indicated that it
did not oppose reopening, so long as Wellington provided a copy of
his wife's naturalization certificate. The immigration judge
1Under the Immigration and Naturalization Act (the "INA"), the
spouse of a lawful permanent resident may receive an adjustment of
status to lawful permanent resident when an immigrant visa becomes
available. 8 U.S.C. § 1154(a)(1)(B). Because the number of such
visas is limited, an applicant may have to wait two years or more
before a visa is available. See §§ 1151(b), 1152(a)(4), and
1153(a). The immediate relatives of U.S. citizens, however, are
not subject to worldwide limits on the availability of immigrant
visas. § 1151(a).
2

concluded that Wellington had presented a new fact that was
material to his deportation proceeding, and granted the motion to
reopen on July 21, 1993.
Wellington's hearing on the reopened proceeding was initially
scheduled for September 9, 1993. Wellington states that he and his
attorney appeared, but that the INS attorney informed the
immigration judge that INS was not ready to go forward.2 The
hearing was then rescheduled to October 14. The hearing was
subsequently rescheduled two additional times--neither time at
Wellington's request--to December 17 and, finally, to January 21,
1994. Notices of all changes were served upon Wellington's
attorney, but not upon Wellington himself.
Wellington's attorney misplaced the notice of the January 21
hearing. The attorney submitted an affidavit in which he swore
that he had contacted the INS attorney to inquire about the hearing
date, and was informed that the hearing was set for January 24.
Neither Wellington nor his attorney appeared on January 21.
Wellington states that both he and his attorney appeared on January
24. On January 25, the immigration judge issued a form order on
which the selection for "neither the respondent nor the
respondent's representative was present" was checked. The order
continues as follows:
Therefore, as no good cause was given in regard to the failure
to appear at the hearing concerning the request for relief, I
find that the respondent has abandoned any and all claim(s)
2The record does not contain any transcript of this hearing,
but INS does not dispute Wellington's statement, and the notice of
rescheduling is itself dated September 9.
3

for relief from deportation.
Wherefore, the issue of deportability having been resolved, it
is HEREBY ORDERED for the reasons set forth in the Immigration
and Nationalization Service charging document that the
respondent be deported to SIERRA LEONE.
Rec. 71 (capitalization in original).
Wellington did not directly appeal the January 25, 1994 order.
Instead, through his attorney, Wellington filed a second motion to
reopen, in which Wellington again submitted documentation of his
wife's naturalization and the birth certificates of his two
daughters. Wellington additionally offered the "new fact" of the
misinformation provided by the INS attorney, and the fact that his
counsel would have been unable to attend a January 21 hearing.
Wellington attached an a affidavit from his attorney attesting to
the facts surrounding the missed hearing.
INS filed its response opposing Wellington's second motion to
reopen one week late. The response was accepted and considered,
despite an INS regulation that indicates that motions to reconsider
or reopen "shall be deemed unopposed unless timely response is
made." 8 C.F.R. § 3.23(b). In its response, INS argued that
Wellington's deportation proceedings should not be reopened because
Wellington had not established "good cause, within the meaning of
the Act" for his failure to appear at the January 21 hearing. The
response, filed by the trial attorney, indicated that she had "no
recollection" of any conversation with Wellington's attorney.
The immigration judge denied Wellington's second motion to
reopen in a written decision filed April 14, 1994. The ruling
first observed that an immigrant seeking to reopen a deportation
4

proceeding must make a prima facie showing of eligibility for the
relief sought. The immigration judge further stated that "when the
basis for the motion to reopen is that the immigration judge held
the hearing in absentia, the alien must establish that he had
reasonable cause for his absence from the proceeding." The
immigration judge concluded that Wellington had not met the
"statutory requirement" of showing reasonable cause for his failure
to appear. The court found that it was therefore unnecessary to
determine whether Wellington had made the requisite prima facie
showing of eligibility, and denied the motion to reopen.
The BIA dismissed the appeal on November 22, 1995. The BIA
found "no prejudice" to Wellington in the immigration judge's
consideration of the untimely response. The BIA further observed
that Wellington had been in deportation proceedings for some time,
and should have known the importance of appearance. The BIA
therefore questioned Wellington's "apparent failure to be
independently aware of the hearing date." The BIA concluded, like
the immigration judge, that Wellington had failed to establish
"reasonable cause for his failure to appear."
This appeal followed.
II
We have jurisdiction to review the agency's refusal to reopen
under the judicial review provisions of the Administrative
Procedure Act, 5 U.S.C. §§ 702-706. The APA specifies, in relevant
part, that the reviewing court shall set aside agency action found
to be "arbitrary, capricious, an abuse of discretion, or otherwise
5

not in accordance with law ... [or] without observance of procedure
required by law." 5 U.S.C. § 706(2)(A) and (D). Although INS
enjoys broad discretion over motions to reopen, in this case the
agency's decision was both arbitrary and based upon a series of
actions that did not accord with the procedures required by law.
A
The INA permits an alien to apply for an adjustment of status
if the alien is eligible to receive an immigrant visa, and a visa
is immediately available. 8 U.S.C. § 1255(a). The parties agree
that Wellington is statutorily eligible for adjustment of status.
The INA does not specify the procedures by which an alien may apply
for adjustment. INS practice requires that aliens who have been
found deportable in deportation proceedings seek adjustment of
status through the mechanism of reopening their deportation
proceedings. See Yahkpua v. INS, 770 F.2d 1317, 1318 (5th
Cir.1985) (application for adjustment of status construed as
request for reopening).
The motion to reopen is not created by the INA itself, but by
the regulations enacted pursuant to the INA. See 8 C.F.R. §§
3.23(b), 242.22. Wellington's deportation proceedings were
"reopened" as of July 21, 1993. The much-rescheduled adjustment
hearing that Wellington failed to attend was a "deportation
proceeding" to which the procedures specified in 8 U.S.C. § 1252
apply. Subsection (b) of this provision indicates that
... 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 special inquiry officer may
6

proceed to a determination in like manner as if the alien were
present.
If an alien fails without reasonable cause to appear for a hearing
of which he had notice, the immigration judge may properly conduct
an in absentia hearing.
If an alien is found deportable or denied discretionary
relief in an in absentia hearing, he still may move for reopening.
However, an alien who seeks to reopen a deportation hearing that
was held in absentia must, in addition to meeting the normal
standards for reopening, demonstrate "reasonable cause" for his
failure to attend the previous hearing. U.S. v. Estrada-Trochez,
66 F.3d 733, 736 (5th Cir.1995); Patel v. INS, 803 F.2d 804, 806
(5th Cir.1986). INS argues on this basis that the BIA properly
denied Wellington's motion to reopen because Wellington had failed
to establish "reasonable cause" for his failure to appear at the
January 21 hearing.
We agree with INS that the error of an applicant's counsel in
misplacing the hearing notice does not constitute "reasonable
cause" for the applicant's failure to appear.3 That point,
3We do question, however, whether INS' failure to provide
Wellington with personal service of the notice would not constitute
"reasonable cause." Under the amended § 1252b(a)(2), INS is
required to provide, "in person," written notice of the time and
place of deportation proceedings, and of the consequences of
failing to appear. The notice in this case complied with these
requirements, except that it was delivered only to Wellington's
attorney, and not to Wellington himself--although Wellington had
provided his current address in his application for adjustment of
status. INS apparently takes the position that the personal notice
requirement applied only to Orders to Show Cause. In re Grijalva,
Int. Dec. 3246, 1995 WL 314388, at *6 (BIA 1995). Yet § 1252b
applies by its terms to "deportation proceedings" (as does § 1252,
which the INS repeatedly cites as applicable to this case), and
7

however, is inapposite to this appeal. A demonstration of
"reasonable cause" is a prerequisite to reopening a determination
reached in an in absentia hearing. But no in absentia hearing was
held in this case.
The statute specifically authorizes in absentia hearings,
permitting an immigration judge to "proceed to a determination in
like manner as if the alien were present." As the cases cited by
the BIA in its decision plainly reveal, an in absentia hearing is
a hearing on the merits of the record before the administrative
court. See, e.g., Matter of Balibundi, 19 I. & N. Dec. 606, 607
(BIA 1988) (affirming decision of immigration judge who
"adjudicated the respondent's persecution claim based on the
written application submitted by the respondent"); Matter of Nafi,
19 I. & N. Dec. 430, 431 (BIA 1987) (alien found excludable in in
absentia hearing). See also Patel, 803 F.2d at 806 (immigration
judge ordered alien deported in in absentia hearing "after
reviewing the documentary evidence").
There is no evidence in the record to indicate that
Wellington's application for adjustment of status was adjudicated
on the merits of the record before the immigration judge.4 On the
states that "written notice shall be given in person to the alien
... in the order to show cause or otherwise ..." § 1252b(a)(2)(A).
Also, we have previously applied the provisions of § 1252b in
appeals concerning relief from deportation. See Estrada-Trochez,
66 F.3d at 736 n. 1.
4That record contained a copy of Mrs. Wellington's
naturalization certificate, a copy of the Wellingtons' marriage
certificate (which reveals that the couple had married before
Wellington was first placed in deportation proceedings), and
Wellington's application for adjustment of status, which indicates
8

contrary, the boilerplate order of January 25, 1994 states that
Wellington's application was deemed "abandoned" due to his failure
to appear.
Under 8 C.F.R. § 103.2(b)(13), an application or petition
shall be considered "abandoned" if the applicant or petitioner
fails to submit requested evidence or to appear for an interview.
Presuming that the adjustment hearing may be construed as an
"interview," the immigration judge properly concluded that
Wellington had "abandoned" his application within the meaning of
the regulation. We have no occasion to determine whether the
regulation comports with the requirements of 8 U.S.C. § 1252(b),
because Wellington has not appealed the decision of the immigration
judge that his application for adjustment of status should be
denied due to abandonment.5 We conclude only that this decision is
not the equivalent a determination reached in an in absentia
hearing. Because no in absentia hearing was held, the rule that in
absentia determinations may only be reopened upon a showing of
"reasonable cause" is inapplicable.
B
The effect of the January 25, 1994 decision was simply to
reinstate the previous deportation determination. The decision
ordered deportation "for the reasons set forth in the Immigration
that the couple has two young children who are U.S. citizens.
5We observe that the same regulation states that a denial due
to abandonment may not be appealed, although the applicant may move
to reopen, as Wellington did in this case. 8 C.F.R. §
103.2(b)(15).
9

and Naturalization Service charging document"; the sole charging
document in the record is the August 1990 Order to Show Cause.
Accordingly, we conclude that Wellington's February 23, 1994
motion to reopen, is (as it states) a motion to reopen the 1991
proceedings and the resulting December 1991 order of deportation.
An alien seeking to reopen a deportation proceeding must both
establish eligibility and demonstrate that the "equities" in his
case will weigh in favor of granting the discretionary relief for
which reopening is sought. Yahkpua, 770 F.2d at 1320. We review
denials of motions to reopen for abuse of discretion. INS v.
Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 725, 116 L.Ed.2d 823
(1992).
In this case, the immigration judge and the BIA erred by
holding Wellington's motion to reopen to the showing required to
reopen a determination reached in an in absentia hearing. Under
the proper standard, it appears that Wellington's motion to reopen
should be granted. In his motion, Wellington offers the fact that
an immigrant visa is now immediately available to him because of
his wife's naturalization on September 16, 1992, combined with the
visa petition approved in 1991. This fact is material because it
makes Wellington eligible for an adjustment of status to lawful
permanent resident, and it could not have been presented at the
July 1991 hearing.
Wellington's motion additionally offers substantial evidence
of "equities" weighing in his favor. He attached two Louisiana
birth certificates that indicate that Wellington and his wife were
10

married and had a child together before Wellington was ever placed
in deportation proceedings, and that Wellington has two young
daughters who are U.S. Citizens by birth. The equities weighing in
Wellington's favor appear to exceed those in other cases where
reopening has been granted so that an alien could pursue an
"immediate relative" adjustment of status. See Israel v. INS, 785
F.2d 738, 740-41 (9th Cir.1986) (discussing "spouse of citizen"
cases).
Although decisions on motions to reopen are discretionary, an
agency may not depart from its settled policies without offering a
reasoned explanation. INS v. Yang, --- U.S. ----, ----, 117 S.Ct.
350, 353, 136 L.Ed.2d 288 (1996) ("an irrational departure from
[settled] policy (as opposed to an avowed alteration of it) could
constitute action that must be overturned as "arbitrary, capricious
[or] an abuse of discretion' within the meaning of the
Administrative Procedure Act"); Israel, 785 F.2d at 742 (holding
BIA decision "arbitrary" for refusing reopening without explanation
in case with facts "indistinguishable" from another in which
reopening was granted).
The BIA and the immigration judge erred by applying the wrong
legal standard to Wellington's motion to reopen. The immigration
judge additionally erred by failing to consider the motion
unopposed, as required by INS' own regulations. These errors were
prejudicial to Wellington, for had his "unopposed" motion to reopen
been reviewed under the proper standard, it should have been
granted.
11

III
Accordingly, we conclude that the BIA abused its discretion
when it affirmed the decision of the immigration judge to deny
Wellington's motion to reopen. We therefore REVERSE the judgment
of the BIA and REMAND the case for further proceedings not
inconsistent with this opinion.
REVERSED and REMANDED.

12