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Click here for the full text of this decision FACTS:The petitioner crossed the border at Brownsville in March 2002 without proper entry documents and was placed in removal proceedings. Three days later, the Immigration and Naturalization Service, now Department of Homeland Security, found that petitioner had a credible fear of returning to Cuba and paroled him into the United States the following day. Petitioner subsequently applied for asylum, withholding of removal, and relief under the Convention Against Torture. Although the petitioner had appeared timely for several prior hearings, on Jan. 30, 2003, he arrived in the courtroom 20 minutes late for his 8:30 a.m. asylum hearing. According to his uncontradicted affidavit testimony, the petitioner had been residing in Austin and making the trip to San Antonio by car for all previous hearings. For those hearings, the petitioner’s uncle had driven him to the San Antonio courthouse. On January 30th, however, the petitioner had to travel on his own without help from his uncle. Traveling on I-35, the petitioner intended to take the “Corpus Christi” exit, but mistakenly took the adjoining “N. Alamo” exit, because he had become confused in the high-density, rush-hour traffic on the interstate. This resulted in his heading in the wrong direction for a brief period. As a result, the petitioner arrived at the courthouse at 8:44, while the immigration judge (IJ) was still on the bench. By the time the petitioner entered the courtroom at 8:50, however, the IJ had declared that the petitioner had “failed to appear” for the hearing, found him removable, issued an order of deportation in absentia, and exited the courtroom. Petitioner states, and the government does not contest, that he arrived at the courtroom no more than five minutes after the IJ had issued his order and left; and that the IJ, who by then was just across the hall from the courtroom, was notified immediately of the petitioner’s presence but refused to return and proceed with the hearing. The petitioner promptly filed a timely motion to reopen the removal proceeding and to rescind the in absentia removal order. The IJ denied the motion, ruling that th epetitioner did not establish “exceptional circumstances” for his “failure to appear.” On appeal to the BIA, the IJ’s decision was affirmed without opinion. HOLDING:The court grants the petition and remands to the BIA with instructions to remand this matter for petitioner to present his claims, leaving to the discretion of the BIA whether to remand to a different IJ. An order of removal may be entered in absentia if 1. The alien is properly notified of the hearing date and time, yet fails to attend the scheduled hearing; and 2. The DHS is able to establish that the alien is removable. “We are convinced beyond cavil that there was no failure to attend in this instance, so we grant the petition. We recognize the limited nature of our review of determinations by an IJ or the BIA, but we are not left completely fettered and unable to address what amounts to a clear abuse of discretion an arbitrary exercise of judicial fiat at the expense of a powerless alien whom the DHS had already found to have a credible fear of returning to Cuba.” OPINION:Jacques L. Wiener, J.; Jones, Wiener, and Clement, J.

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