Ricardo Hernandez-Vivas v. Immigration & Naturalization Service

23 F.3d 1557 Ricardo HERNANDEZ-VIVAS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 92-70605. United States Court of Appeals, Ninth Circuit. Submitted March 11, 1994 * . Decided May 11, 1994. Anne Pilsbury, Central American Legal Assistance, Brooklyn, NY, for petitioner. Stuart M. Gerson, David J. Kline, David V. Bernal, U.S. Dept. of Justice, Washington, DC, for respondent. Petition to Review a Decision of the Immigration and Naturalization Service. Before: BRIGHT ** , WIGGINS, and T.G. NELSON, Circuit Judges. Opinion by Judge WIGGINS; Concurrence by Senior Circuit Judge BRIGHT. WIGGINS, Circuit Judge: 1 Ricardo Hernandez-Vivas ("Hernandez") petitions for review of an order from the Board of Immigration Appeals (BIA). Hernandez seeks to reopen his deportation proceedings so that he may apply for asylum and withholding of deportation. At a deportation hearing held in absentia, an immigration judge (IJ) found that Hernandez was deportable. Later, the IJ denied Hernandez's motion to reopen on the ground that Hernandez failed to explain his absence at the deportation hearing. 2 The BIA dismissed the appeal, finding that Hernandez did not establish…

Opinion by Judge WIGGINS; Concurrence by Senior Circuit Judge BRIGHT.

Ricardo Hernandez-Vivas (“Hernandez”) petitions for review of an order from the Board of Immigration Appeals (BIA). Hernandez seeks to reopen his deportation proceedings so that he may apply for asylum and withholding of deportation. At a deportation hearing held in absentia, an immigration judge (IJ) found that Hernandez was deportable. Later, the IJ denied Hernandez’s motion to reopen on the ground that Hernandez failed to explain his absence at the deportation hearing.

The BIA dismissed the appeal, finding that Hernandez did not establish reasonable cause for his failure to appear. The BIA reasoned that, while Hernandez filed a motion to change venue, he was still required to appear because his motion had not been granted prior to the hearing date. Hernandez appeals. We have jurisdiction pursuant to 8. U.S.C. § 1105a(a). We deny the petition.

I.

Hernandez is a 45-year-old native and citizen of El Salvador. He is a political activist. Hernandez asserts that his brother and two cousins were killed by death squads in 1980. His wife, son and three daughters live in El Salvador.

Hernandez entered the United…

concurring separately.

I concur in the result.

I do not agree, however, that the motion to change venue was flawed, as stated on page 1560 of this court’s opinion.

Nevertheless, after mailing the motion to the immigration judge, petitioner or counsel still retained the obligation to follow up on the motion to make sure that the motion had been received and filed and would be acted upon by the immigration judge prior to the scheduled hearing on deportation. Because petitioner or counsel failed to follow up on the motion before the hearing, I agree that the BIA did not err in affirming the IJ’s denial of Hernandez’s motion to reopen.