that he may be imprisoned or killed were he to return to Afghanistan. Therefore, the BIA's refusal to allow petitioner to present the merits of his claim before the INS on the basis of a largely ministerial regulation creates the possibility of an unjust result.
b. Standard of Review.
Respondent also objects to what it terms the MJ's "de novo assessment of whether petitioner merits reopening of his proceedings." Generally, judicial review of BIA decisions must proceed under an abuse of discretion standard. Thomas v. I.N.S., 976 F.2d 786, 789 (1st Cir. 1992); Wijeratne v. I.N.S., 961 F.2d 1344, 1348 (7th Cir. 1992). While formulation of the abuse of discretion standard is by no means invariable, the Second Circuit has interpreted it to require that the BIA's decision "[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 or . . . on other considerations that Congress could not have intended to make relevant." Wong Wing Hang v. I.N.S., 360 F.2d 715, 719 (2d Cir. 1966).
As respondent argues, it is "well settled that a reviewing court may not reweigh the factors relevant to a discretionary determination by the BIA." Respondent's Objections at 8 (citing I.N.S. v. Rios-Pineda, 471 U.S. 444, 452, 85 L. Ed. 2d 452, 105 S. Ct. 2098 (1985); I.N.S. v. Jong Ha Wang, 450 U.S. 139, 144, 67 L. Ed. 2d 123, 101 S. Ct. 1027 (1981)). However, when the BIA's decision is fact-sensitive and failure to address relevant factors is of sufficient magnitude, the court may reconsider the merits of the decision. See Mejia-Carrillo v. United States Immigration and Naturalization Service, 656 F.2d 520, 522 (9th Cir. 1981) (BIA's decision may be reversed only for an abuse of discretion, such as failure to consider all relevant facts). See also Seatrain International, S.A. v. Federal Maritime Com., 194 U.S. App. D.C. 370, 598 F.2d 289, 292 (D.C. Cir. 1979) (interpreting 5 U.S.C. § 706(2)(A)). In addition, an agency's conclusions of law are reviewable under a higher standard than that of "abuse of discretion." H.W. Wilson Co. v. United States Postal Service, 580 F.2d 33, 37 (2d Cir. 1978) ("when the question is one of law and does not implicate the expertise of the agency, we must provide a stricter standard of review").
In the present case, the MJ recognized that she was limited to determining only "whether the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Report at 12 (quoting 5 U.S.C. § 706(2); I.N.S. v. Abudu, 485 U.S. 94, 100, 106, 99 L. Ed. 2d 90, 108 S. Ct. 904 (1988); Vargas v. I.N.S., 938 F.2d 358, 360 (2d Cir. 1991)). Respondent argues that the MJ erred by not applying the standard of review suggested by I.N.S. v. Doherty, 116 L. Ed. 2d 823, 112 S. Ct. 719 (1992). In that case, the Supreme Court applied solely the "abuse of discretion" standard in reviewing a BIA order denying reopening of an asylum claim. 112 S. Ct. at 724.
However, even accepting that "abuse of discretion" alone is the appropriate standard in this case, the court believes that the scope of the MJ's review was proper. The MJ partially addressed her inquiry to the fairness of the procedures governing the BIA's discretion in this case, rather than to the authorized use of discretion itself. This line of inquiry is permissible. Charles Gordon & Stanley Mailman, Immigration Law and Procedure, § 81.09 at 81-141 (Rev. Ed. 1993); see also In re Cartellone, 148 F. Supp. 676, 679 (D.C. Ohio 1957) ("Administrative Procedure Act authorizes a review by the court and inquiry as to fairness of hearing"), aff'd, 255 F.2d 101 (6th Cir. 1958), cert. denied, 358 U.S. 867 (1958).
Moreover, the examining court may engage in a searching review of the rationale for an administrative agency's decision to determine whether the agency's action was based on a consideration of relevant factors. See Mejia-Carrillo, 656 F.2d at 522; cf. Sanchez v. I.N.S., 755 F.2d 1158, 1161 (5th Cir. 1985) (applying the abuse of discretion standard to alien's attempt to avoid deportation via claim of extreme hardship). Finally, the MJ characterized the BIA's central finding, that petitioner's noncompliance with section 265.1 precluded reasonable cause for his failure to appear at the hearing, as a legal conclusion, for which a higher standard of review is appropriate. H.W. Wilson, 580 F.2d at 37. An examination of the MJ's Report reveals that the scope of her review is consistent with these guidelines.
c. The Merits.
According to 8 C.F.R. § 3.2, "motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing." In addition, the United States Supreme Court has held that motions to reopen may be denied for petitioner's lack of a reasonable explanation for failure to present an asylum claim at the initial hearing or for failure to establish a prima facie case for asylum. I.N.S. v. Abudu, 485 U.S. 94, 104-105, 99 L. Ed. 2d 90, 108 S. Ct. 904 (1987).
On all three of his motions petitioner offered material evidence not previously available or presented to the BIA. This evidence consisted of the merits of his asylum claim and affidavits concerning the circumstances of his failure to receive actual notice of his exclusion hearing. However, the Board refused to reopen exclusion proceedings. In both of its decisions on this matter, the Board relied exclusively upon petitioner's failure to comply with 8 C.F.R. § 265.1, requiring aliens to file a change of address notice within ten days. The MJ concluded that the BIA had abused its discretion by inexplicably departing from established INS policies in denying petitioner's motion to reopen his hearing, Report at 14, and recommended that the INS reopen his hearing.
The court concurs with the MJ's result, but not her analysis. There was no evidence in the record of established INS policies with respect to granting motions to reopen exclusion hearings or to holding such hearings in absentia. It may be, as the MJ states in her Report at 14, that in no case has a motion to reopen an in absentia hearing been denied on such blameless conduct as was relied upon by the BIA in this case. However, this lack of cases does not imply a consistent administrative policy on the part of the INS.
Likewise, the MJ's finding that the use of in absentia proceedings is improper without "obstructionist tactics" on the alien's part is not supported by INS precedent or other judicial interpretations of the immigration laws, and does not seem necessary to reach her result in this case. In any event, whether the BIA inexplicably departed from established policies cannot be satisfactorily determined from the record.
However, while the court is unable to conclude that the BIA violated established policies, it is equally unable to absolve the BIA of error in this case. Examination of an agency decision under the abuse of discretion standard includes a determination of whether agency action was based upon a consideration of relevant factors. Mejia-Carrillo, 656 F.2d at 522; see also Howard v. I.N.S., 930 F.2d 432, 434 (5th Cir. 1991) (reviewing BIA's final order of deportation for "error in law and [whether] reasonable, substantial and probative evidence on the record considered as a whole supports its factual findings"). Moreover, in reviewing BIA decisions "an evaluation of the agency's treatment of the evidence [before it] is part of review of discretionary agency action." Coriolan v. I.N.S., 559 F.2d 993, 998 (5th Cir. 1977). In the present case, the BIA's treatment of the evidence before it was so cursory as to amount to no review at all.
At the time the BIA issued its decision, petitioner's motion to reopen proceedings on his asylum claim had already been through three stages of review. At each level, the petitioner supplemented previous filings with additional testimonial evidence going to his lack of fault in failing to notify the INS of his change of address and to the merit of his asylum claim, which remained unheard. The petitioner's evidence demonstrated that he had made good faith efforts to comply with INS procedures throughout the exclusion proceedings and that his failure to comply with section 265.1 was prompted mainly by his lack of English language ability and by his ignorance of the provision and its requirements. Evidence was also presented supporting the merits of petitioner's asylum claim.
Petitioner also argued that by failing to receive actual notice of his exclusion hearing, he had been deprived of his right to a full and fair hearing on the merits of his asylum claim. This claim has merit. See Sewak v. I.N.S., 900 F.2d 667, 672 (3rd. Cir. 1990) (claim that deportation order issued in absentia is improper when alien lacked actual notice of the hearing had merit); see also 8 U.S.C. § 1226(a) (alien subject to exclusion has statutory right to hearing on the merits of his application). However, while the BIA's decision mentioned the lack of actual notice, it was given no weight because the petitioner violated § 265.1 by failing to provide a change of address notice within ten days of moving from his last known address.
The decision to discount petitioner's lack of actual notice was error on the part of the BIA. In this case, the INS mailed a notice of hearing form to petitioner's last known address on May 10, 1990. The mailing was intended to notify petitioner that a hearing on his asylum claim was scheduled for May 23, 1990. This provided Ahmad with a window of less than two weeks between the time notice was sent and the scheduled hearing. According to uncontested evidence submitted by petitioner Ahmad, at approximately the time notice of his exclusion hearing was sent Ahmad moved from the apartment of the friend with whom he had been staying in Woodside, New York to another friend's apartment in Brooklyn.
Except for his failure to appear on May 23, 1990, Ahmad has complied with all INS procedures. It is uncontested that petitioner failed to receive actual notice of his May 23 exclusion hearing. However, while the BIA suggests that petitioner is at fault for this, he is not wholly blameworthy: Ahmad made arrangements with his former roommate to forward his mail, and according to an uncontested affidavit submitted by this roommate, the mail was forwarded several weeks after petitioner moved. R. at 30. By then Ahmad's hearing had already been held, and he had been excluded in absentia. The INS itself contributed to his failure to appear by allowing less then two weeks between the notice of hearing and the hearing date.
This court cannot conclude that petitioner, who has what appears to be a meritorious prima facie case for asylum
supported by medical evidence of his torture and abuse at the hands of the Afghanistan government, should be entirely prevented from presenting any of this evidence to the INS because of failure to appear at an exclusion hearing for which he lacked actual notice. This is so even though Ahmad's lack of notice was partially his fault; his failure to comply with the technical provisions of 8 C.F.R. 265.1 does not justify the harsh penalty here proposed. See Sakhavat v. I.N.S., 796 F.2d 1201, 1204 (9th Cir. 1986) (BIA's denial of motion to reopen was an abuse of discretion where agency failed to adequately consider petitioner's meritorious prima facie case for asylum, even though petitioner had failed to request asylum at his initial hearing, where petitioner had reasonable cause).
According to 8 U.S.C. § 1253(h)(1), "the Attorney General shall not deport or return any alien . . . to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." The BIA, as the judicial arm of an executive agency, has a regulatory mandate to conduct a discretionary balancing of the facts in its decisions. See 8 C.F.R. § 208.10 ("failure to appear may be excused for other serious reasons in the discretion of the Asylum Officer"). However, its broad discretion should not extend to the scrupulous enforcement of a ministerial regulation at the cost of petitioner's statutory right to a hearing on his facially valid claim, especially where he has complied with all INS procedures of which he was aware. See Doherty v. United States Dept. of Justice, Immigration and Naturalization Service, 908 F.2d 1108, 1114 (2d Cir. 1990) ("right to apply for asylum or withholding of deportation carries with it right to a hearing 'where the likelihood of persecution can be fairly evaluated'"), rev'd on other grounds, 116 L. Ed. 2d 823, 112 S. Ct. 719 (1992).
Therefore, to the extent that the BIA's decision implies that failure to comply with section 265.1 precludes a showing of reasonable cause without regard to the circumstances leading to the failure to comply, it is an abuse of discretion. See Report at 13-14 (analyzing legal authority on exclusion proceedings and concluding that a per se rule concerning violations of section 265.1 is unwarranted); cf. Augustin v. Sava, 735 F.2d at 37 ("the protected right to avoid deportation or return to a country where the alien will be persecuted warrants a hearing where the likelihood of persecution can be fairly evaluated"); Sewak, 900 F.2d at 672.
This court is wary of usurping agency discretion, and is aware of the impropriety of substituting its judgment for that of the BIA within matters under the agency's jurisdiction. However, what is uncontested is that courts may not reweigh factors already considered by the administrative tribunal. This implies that some weighing was done by the tribunal in the first instance. Reviewing courts would be abdicating their own responsibility if they failed to correct agency decisions which denied any weight to relevant factors in the record before them.
For the reasons stated above, petitioner's habeas corpus motion is granted. The court orders the exclusion proceedings reopened for consideration on the merits of petitioner's asylum application and his claim for withholding deportation. The hearing is to be held within 60 days of the filing of this order unless an extension is sought for good cause shown.
Dated: New York, New York
February 1, 1994
CHARLES H. TENNEY