Does an attorney's sworn statement constitute evidence?

Kulhawik v. Holder, No. 08-4582-ag (2nd Cir. July 6, 2009).

An attorney’s unsworn statements in a brief are not evidence. But when an attorney makes statements under penalty of perjury in an affidavit or an affirmation, the statements do constitute part of the evidentiary record and must be considered. While it will remain up to the BIA to assess and then report, at least in some minimal fashion, what weight it gives an attorney’s affidavit – taking into account such factors as the affiant’s personal knowledge of the subject matter of the affidavit – the BIA may not merely dismiss it as constituting no evidence at all. Therefore, the BIA erred by failing to consider the affirmation submitted by petitioner’s attorney.

To succeed in his motion to reopen, petitioner was required to demonstrate that his failure to appear was because of exceptional circumstances. The law at 8 U.S.C. § 1229a(e)(1) provides that “‘exceptional circumstances’ refers to exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien.”

Even if petitioner had difficulty understanding the IJ’s oral instructions, the affirmation submitted by petitioner’s attorney contains no claim that petitioner could not understand the Notice of Hearing. The petitioner has never explained why he was able to understand and comply with the Notice to Appear for his initial appearance but was unable to understand and comply with the Notice of Hearing for his subsequent hearing. The petitioner’s claims that because of his lack of knowledge of the English language that he misunderstood the IJ’s instruction concerning his future hearing and his erroneous belief that there would be another letter from the court informing him about a new hearing date are not akin to battery or extreme cruelty or serious illness or death, and petitioner cannot prevail on a showing of less compelling circumstances.