Judges: PerCuriam
Filed: Dec. 22, 2014
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued December 16, 2014 Decided December 22, 2014 Before DIANE P. WOOD, Chief Judge ILANA DIAMOND ROVNER, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 14-2675 ELOY PEREZ-COVARRUBIAS, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. No. A201 115 524 ERIC H. HOLDER, JR., Attorney General of the
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued December 16, 2014 Decided December 22, 2014 Before DIANE P. WOOD, Chief Judge ILANA DIAMOND ROVNER, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 14-2675 ELOY PEREZ-COVARRUBIAS, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. No. A201 115 524 ERIC H. HOLDER, JR., Attorney General of the ..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 16, 2014
Decided December 22, 2014
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐2675
ELOY PEREZ‐COVARRUBIAS, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A201 115 524
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
Eloy Perez‐Covarrubias, a 37‐year‐old native and citizen of Mexico, petitions for
review of an order of the Board of Immigration Appeals upholding an immigration
judge’s denial of his motion to reopen removal proceedings conducted in absentia. We
deny the petition.
Perez‐Covarrubias lived in the United States for 15 years without detection by
immigration authorities. He first entered the United States in 1996, briefly returned to
Mexico in 2008, and then reentered the United States without inspection later that year.
In April 2011, while Perez‐Covarrubias was in jail on a charge of driving under the
influence, the Department of Homeland Security “encountered” him during “routine
No. 14‐2675 Page 2
criminal alien operations” and charged him with removability as an alien present in the
United States without being admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i). In July
2011 the immigration court in Chicago mailed Perez‐Covarrubias a notice of his first
master calendar hearing, scheduled for November 6, 2012, at 9:00 A.M. Three months
later the court mailed him another notice with the same hearing date and time, along
with the court’s new address, as it had recently changed location. Perez‐Covarrubias
did not appear at his removal hearing, so the IJ conducted it in absentia, found him
removable as charged, and ordered him removed to Mexico, see id. § 1229a(b)(5)(A).
About four months later, Perez‐Covarrubias, through counsel, filed a motion to
reopen his removal proceedings, arguing that “exceptional circumstances” had caused
his failure to appear. In a signed (but unnotarized) statement, Perez‐Covarrubias
admitted that he had received notice of his November 6 hearing but “inadvertently”
wrote November 7 on his calendar. According to Perez‐Covarrubias, he had traveled to
Chicago on November 7, only to discover that his hearing had taken place the previous
day. Perez‐Covarrubias attributed his “serious error [of] mis‐calendaring” to his
“human frailty.” With the motion to reopen, Perez‐Covarrubias also attached an
application for cancellation of removal based on his lengthy residence in the United
States and the alleged hardship his removal would cause his two U.S.‐born children.
See id. § 1229b(b)(1).
The IJ denied the motion to reopen. Relying on Uriostegui v. Gonzales, 415 F.3d
660 (7th Cir. 2005), the IJ concluded that Perez‐Covarrubias’s mistake about his hearing
date did not qualify as an “exceptional circumstance” that would excuse his absence,
see 8 U.S.C. § 1229a(b)(5)(C)(i). Perez‐Covarrubias’s “confusion” about his hearing date,
the IJ explained, failed to rise to the level of compelling circumstances “beyond [his]
control.” The Board agreed with the IJ that Perez‐Covarrubias’s circumstances were not
exceptional and upheld the IJ’s determination.
In his petition for review, Perez‐Covarrubias asserts that the IJ and the Board
failed to consider the totality of the circumstances when concluding that no exceptional
circumstances excused his failure to appear. He contends that his “human error” in
recording the wrong hearing date should be excused because he was proceeding pro se,
he showed up at court the next day believing that to be his hearing date, and he had
applied for relief from removal.
Exceptional circumstances that excuse an alien’s failure to appear at a removal
hearing are circumstances “beyond the control of the alien,” such as serious illness or
death of the alien’s spouse, child, or parent, “but not including less compelling
circumstances.” Id. § 1229a(e)(1). An alien’s mistaken belief about his hearing date does
No. 14‐2675 Page 3
not rise to the level of an exceptional circumstance. See Uriostegui, 415 F.3d at 662–63 (no
exceptional circumstance where alien misheard Spanish word for “July” instead of
“June” and thus missed June hearing); Acquaah v. Holder, 589 F.3d 332, 335–36 (6th Cir.
2009) (no exceptional circumstance where alien had “good faith but mistaken belief”
that hearing was July 7 instead of July 5).
Nonetheless, Perez‐Covarrubias argues that his circumstances are exceptional
because they resemble those at issue in Kaweesa v. Gonzales, 450 F.3d 62 (1st Cir. 2006), in
which the First Circuit excused a Ugandan asylum‐seeker’s absence from her May 13
hearing when she believed it was May 17, id. at 64. In finding exceptional
circumstances, the First Circuit considered the totality of the circumstances, including
the alien’s efforts to contact the immigration court, the alien’s promptness in seeking
reopening, the strength of the alien’s underlying claim, the harm the alien would suffer
if the motion were denied, and the inconvenience the government would suffer if the
motion were granted. See id. at 68–69.
But Perez‐Covarrubias’s circumstances are much different from those in Kaweesa.
First, although Perez‐Covarrubias filed his motion to reopen within the 180‐day
deadline for filing such requests, see 8 U.S.C. § 1229a(b)(5)(C)(i), he waited 4 months to
file while Kaweesa filed only 6 days after missing her hearing, see Kaweesa, 450 F.3d
at 64. Moreover, although Perez‐Covarrubias submitted some evidence that he may be
eligible for cancellation of removal, the First Circuit emphasized the dire consequences
that Kaweesa might face in Uganda, not simply her eligibility for some form of relief.
See id. at 69–70 (alien’s allegations of rape and the death of her husband, parents, and
brother “could very well have been sufficient for a grant of asylum”).
Perez‐Covarrubias also urges that due process requires reopening. See id. at 69
(noting that “the statutory concern with notice and exceptional circumstances is
grounded in due process considerations”). Indeed, we have found a violation of due
process where an alien was removed in absentia after arriving to her hearing two hours
late because she had to wait for her hired interpreter. See Nazarova v. INS, 171 F.3d 478,
481, 484–85 (7th Cir. 1999) (excusing alien’s tardiness because government’s “confusing
and contradictory actions”—court employee’s misrepresentation that Russian
interpreter would be available during hearings—denied her “meaningful opportunity
to be heard”); but see Kuschchak v. Ashcroft, 366 F.3d 597, 604 (7th Cir. 2004) (alien’s
abandoned asylum application not excused where counsel filed oddly phrased motion
and neither government nor IJ took actions or made statements to mislead or confuse).
But Perez‐Covarrubias did not receive or rely on any incorrect information from the
No. 14‐2675 Page 4
immigration court; rather, he received notice of his hearing and simply wrote down the
wrong date.
Finally, Perez‐Covarrubias argues that his circumstances are distinguishable
from those of the alien in Uriostegui—namely that the alien there had counsel and had
attended two previous hearings, see Uriostegui, 415 F.3d at 662. But these differences are
inconsequential. We concluded in Uriostegui that mishearing the date uttered by the
interpreter was “nowhere near the illustrative examples [of exceptional circumstances]
given in the statute,” and we held the alien personally responsible even though she had
a lawyer, noting that she “could have double‐checked the date after the hearing when it
was set.” Id. at 663–64. Similarly, Perez‐Covarrubias could have double‐checked his
hearing date, and he did not suggest that he experienced circumstances anywhere close
to those described in the statute. His error in recording the date was directly within his
control, not beyond it. See id.
Accordingly, the agency did not abuse its discretion in denying
Perez‐Covarrubias’s motion to reopen. See Reyes‐Cornejo v. Holder, 734 F.3d 636, 647 (7th
Cir. 2013). We deny the petition for review.