John Valdez’s Legal Blog

The United States Court of Appeals for the Ninth Circuit, in an unpublished decision, gave a broad interpretation to the phrase “exceptional circumstances” in the context of a motion to reopen a removal proceeding. 

In Vu v. Mukasey, the Court ruled that the Board of Immigration Appeals abused its discretion in finding that Nang Duc Vu’s motion to reconsider did not establish exceptional circumstances to excuse his failure to appear at his removal hearing (which resulted in an in absentia deportation order).  Vu argued that his failure to appear was due to his misunderstanding of the date for the hearing.  He also had available relief from removal based on an approved immediate relative petition.  The Ninth Circuit agreed with Vu, noting the available relief and stating that Vu “diligently appeared for all of his previous hearings” and “could have easily misunderstood the [date] of the [missed] hearing.” 

I find the Ninth Circuit’s ruling remarkable for its compassion.  Many courts need to find that someone was incapacitated by an accident before finding exceptional circumstances.  The Ninth Circuit not only looked at a common problem (a communication issue) as a reasonable explanation for missing a hearing, it also looked at the harshness of an in absentia order of deportation when relief is available.

Although the Vu case is not precedent, it does provide practitioners with hope for our clients who have been unfairly ordered deported in absentia.