Because the BIA adopted the IJ’s decision with additional commentary, this court reviews the decision of the IJ, as supplemented by the BIA, as the final administrative order. Further, this court reviews the denial of a motion to reopen under the abuse-of-discretion standard. An abuse of discretion exists where the denial was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group. On the other hand, legal determinations made by the BIA are reviewed de novo.
Failure to appear at a removal proceeding carries the severe consequence of deportation. An order of removal due to an alien’s failure to appear may be rescinded, however, upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances. Such exceptional circumstances include 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, and they must be beyond the control of the alien. An IJ considers the totality of the circumstances when making a determination that exceptional circumstances exist.
The petitioner’s argument that that his two motions to reopen which were both filed well outside the 180-day time limit should nonetheless be equitably tolled because of former counsel’s ineffective assistance is without merit. This court has indeed applied the doctrine of equitable tolling to motions to reopen removal proceedings. However, even if the petitioner’s motions were found to be timely, he would still not be entitled to relief because he has not shown that he missed his hearing due to exceptional circumstances, the motions must be denied.
Where the petitioner asserts that had his former counsel timely filed the motion to reopen his removal proceedings in which he was ordered removed in absentia by the IJ for failure to appear for his telephonic master calendar hearing the motion would have been granted, the key issue on appeal is thus whether the petitioner’s good faith but mistaken belief as to the correct date of the master calendar hearing qualifies as an exceptional circumstance. Although this court has not yet determined what constitutes an exceptional circumstance where an alien has received proper notice of a removal hearing, other circuit courts have set a high threshold and are disinclined to view misunderstandings and communication errors as being sufficient. Notwithstanding this general trend, the United States Court of Appeals for the First Circuit found “exceptional circumstances” to exist in a situation with certain similarities to the petitioner’s. Where an alien representing herself pro se “inadvertently mistook” her May 13, 1999 hearing date for May 17, 1999, and where the petitioner promptly contacted the court on May 17 regarding her error and then filed a motion to reopen two days later, the court held that she had demonstrated the existence of an exceptional circumstance and that the IJ had committed an error of law by denying her motion to reopen, particularly in light of her effort and the severe consequences that she allegedly faced if deported.
This court finds that the scenario presented to the First Circuit is sufficiently distinguishable from the present case to call for a different outcome. To begin with, the First Circuit emphasized the need to conduct a totality-of-the-circumstances analysis, and it highlighted the petitioner’s claim under the Convention Against Torture in which she alleged that she would face rape and torture if deported to Uganda. The Petitioner in the instant case, in contrast, has not made any claim that he would be subject to persecution if removed to Ghana. Moreover, the First Circuit noted that the petitioner in that case took immediate and affirmative action following her court date by contacting the court directly and promptly filing a motion to reopen. There is no evidence that the petitioner in the instant case tried to contact the court directly regarding the status of his case at any point during the two-and-one-half years following the missed hearing. Further, the petitioner in the instant case, unlike the petitioner in the First Circuit case, had an attorney, but other than intermittently checking in with his former counsel, the petitioner was disengaged from his removal proceedings for the two-and-one half years prior to his being taken into custody. Exemplifying this disengagement is the fact that the petitioner never even requested a copy of the motion that his former counsel supposedly filed with the immigration court shortly after the missed hearing. At some point during this long period of time, this court finds that the petitioner’s blind reliance upon his former counsel’s representations became unreasonable.
In addition, the weight of authority generally, as noted above, holds that a mistaken belief as to the correct hearing date does not rise to the level of being an exceptional circumstance. The petitioner has not shown that his mistake as to the correct date for the hearing was in any way beyond his control or of an extraordinary nature comparable to the exceptional circumstances specified by statute. This point is further supported by the Supreme Court’s recognition that there is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases. The petitioner’s mistake as to the correct date of his hearing had severe consequences, but it was a less compelling circumstance than that required for relief under 8 U.S.C. § 1229a(e)(1). Because the petitioner cannot make this requisite showing, this court need not address the petitioner’s arguments regarding his former counsel’s alleged ineffective assistance of counsel that occurred after the fact, nor do this court has to consider whether the filing period for the motions to reopen should have been equitably tolled. The IJ, in other words, would not have abused his discretion in denying a motion to reopen even if the petitioner’s former counsel had promptly filed such a motion several days after July 5, 2005. This court therefore denies the petition for review.
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