The opinion of the court was delivered by: CHARLES H. TENNEY
Petitioner Ahmad arrived in the United States on March 3, 1990 after fleeing his native Afghanistan. Before fleeing, he was imprisoned and tortured for nine months by the government.
Also, petitioner presented evidence that his father, three cousins and uncle were murdered, and his brother injured, by government forces. See Affidavit of Mary E. Davis, attorney for petitioner, sworn to on June 30, 1992. Petitioner claims that the formerly Soviet-backed Afghanistan government is hostile towards his family for aiding the Mujahedin, and that government forces would have tortured or killed him had he remained in Afghanistan. The persecution of the fundamentalist Islamic Mujahedin sect and its supporters by the former Afghanistan government is well documented. See Exhibits Attached to Petition for a Writ of Habeas Corpus ("Pet. Exh.") at Exhibits F, G, H, I and J.
Doubting that the Afghanistan government would authorize his departure from the country, petitioner arrived at JFK International Airport on a flight from Pakistan without travel documents and was excludible pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I).
Petitioner declared his intent to seek asylum and was informed that a hearing would be held to determine whether he should be excluded and deported. Pet. Exh. C. On May 10, 1990, the office of the Immigration Judge sent petitioner a notice that his case was scheduled for a hearing on May 23, 1990. R. at 51.
The notice contained a warning that failure to appear for the hearing could result in an in absentia determination by the IJ. However, petitioner, having recently changed residences, failed to receive this notice. R. at 53. At the hearing held in his absence, the IJ found that Ahmad had failed to appear "without reasonable cause," denied his application for lack of prosecution, and ordered that he be excluded from the United States pursuant to § 212(a)(20) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(a)(7)(A)(i)(I). R. at 45. On May 29, 1990, the INS informed petitioner by mail that he had until June 11, 1990 to appeal the decision to the BIA. R. at 56.
Sometime after this, petitioner received the notice of hearing from a friend with whom he lived before the change of address. He then retained counsel and on July 13, 1990, filed an application to reopen the hearing. The IJ noted that petitioner had still not explained his failure to file a change of address notice until after the in absentia hearing and denied his request on August 21, 1990. R. at 42.
Petitioner appealed the denial of his application to reopen to the BIA, asserting that Ahmad had reasonable cause for his absence, and that the IJ's refusal to reopen the exclusion proceeding was unreasonable, arbitrary, and an abuse of discretion. On December 3, 1990, the BIA, citing 8 C.F.R. § 265.1,
dismissed the appeal on the grounds that petitioner had failed to provide notice of his address change within ten days after his move, and that this precluded any showing of reasonable cause for his absence from the hearing. R. at 33.
Petitioner then sought to reopen the BIA's December 3 decision. Petitioner explained that his failure to notify the Immigration Office of his change of address stemmed from his ignorance of English and his lack of counsel or advice on Immigration and Naturalization Service (INS) procedures, and he described the merits of his asylum petition. Once again the BIA held that petitioner's failure to notify the INS of his change of address precluded any showing of reasonable cause for his absence. R. at 3. Petitioner filed a petition for a writ of habeas corpus in this court, seeking to reverse the order of exclusion and deportation.
The petition was originally before Judge Peter K. Leisure, who referred it to Magistrate Judge Naomi Reice Buchwald ("MJ") pursuant to 28 U.S.C. § 636(b)(1)(B). On April 30, 1993, the MJ issued a Report and Recommendation (the "Report"), advising that the order denying petitioner's motion for a rehearing be reversed and that petitioner be granted a new exclusion hearing before the IJ. After the parties filed their responses to the Report, Judge Leisure transferred the petition to me.
I. Magistrate Judge's Report.
In submissions before the MJ, the government argued that the BIA's order should be upheld both because the petitioner had failed to exhaust his administrative remedies and because the BIA decision was sound on the merits. However, the MJ limited her discussion to the latter point, since at oral argument the government's position had been that, even if petitioner had made all of his arguments before the IJ on his initial motion to reopen, that motion was correctly denied. Report at 6, n. 8.
Petitioner argued that he had been denied a full and fair hearing on the merits of his asylum claim. He stated that because he moved from his original residence at approximately the same time that the INS sent notice of his hearing, and because he did not receive notice of the hearing from his former roommate, with whom he had arranged to forward his mail, until after the hearing date, he had "reasonable cause" for his failure to attend the hearing. He further argued that the BIA abused its discretion by refusing to consider relevant factors when denying him a new hearing on the merits of his asylum claim.
The government's position was that violation of 8 C.F.R. § 265.1 prevented any showing of reasonable cause for petitioner's failure to attend the deportation hearing. According to the regulation, an alien under threat of exclusion must notify the INS of any address change within ten days of the change. The regulation itself does not discuss the consequences of failing to notify the INS of an address change. However, the government argued that the IJ has discretion to consider the failure to notify when reviewing an application to reopen an exclusion proceeding. In the present case, the IJ relied upon petitioner's violation of the ten day notice ...