Balbir Singh v. INS: BIA Improperly Applied New Evidentiary Standard in Denying Motion to Reopen in Absentia Order

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

BALBIR SINGH V. INS: BIA IMPROPERLY APPLIED NEW EVIDENTIARY STANDARD IN DENYING MOTION TO REOPEN IN ABSENTIA ORDER
Immigrants’ Rights Update, Vol. 14, No. 4, July 26, 2000

The U.S. Court of Appeals for the Ninth Circuit has reversed a decision made by the Board of Immigration Appeals denying an Indian national’s appeal of a motion to reopen an in absentia deportation order. The court concluded that the BIA improperly imposed newly-created evidentiary standards on the petitioner by requiring medical evidence to support the petitioner’s sworn statement that an injury prevented him from attending the hearing.

The petitioner in this case, a Mr. Singh, failed to appear at his deportation hearing in June 1996 and was ordered deported in absentia. In September 1996, he timely filed a motion to reopen as well as his declaration in support of it. He declared that he was unable to attend the hearing because he had "twisted his foot so severely that he could not go to work" and had "remained confined to bed for two weeks." He further declared that he could not afford to see a doctor for the injury and that instead he treated the injury by taking Tylenol and having his friend massage his foot with oil. He also submitted a declaration from the friend in support of his motion.

The immigration judge denied the motion to reopen, and on appeal the BIA upheld the denial. The BIA held that Singh had not presented sufficient evidence to show his injury constituted a "serious illness" because he did not present medical evidence from a doctor or a declaration from his employer. BIA member Lory Rosenberg dissented from the decision, stating that the BIA majority was imposing an excessively high evidentiary standard without notice to Singh. Matter of B-A-S-, Int. Dec. 3350 (BIA 1998) (see "BIA Rules on Standards for Reopening In Absentia Cases," Immigrant’s Rights Update, Sept. 16, 1998, p. 3).

On appeal, the court agreed with Rosenberg’s dissent, finding that the BIA had improperly imposed a new evidentiary standard for Singh’s motion to reopen. Citing Arieta v. INS, 117 F.3d 429 (9th Cir. 1997), in which the Ninth Circuit held that the BIA had erred in imposing a new standard of proof for motions to reopen based on lack of notice, the court found the same rationale applicable to Singh’s case.

Moreover, the court found this case more egregious than Arieta since, on the same day that the BIA ruled on Singh’s motion to reopen, it decided another case using a different standard. In Matter of J-P-, Int. Dec. 3348 (BIA 1998), the BIA found that a respondent’s failure to present medical or other evidence to establish the seriousness of the illness was a factor to be weighed in resolving the motion to reopen, but that alternately the claim could be substantiated "through detailed affidavits from respondent, roommates, friends, and co-workers, attesting to the extent of his disability and the remedies used." Id. at 5. The court noted that in this case Singh presented two declarations which "may well have satisfied" the J-P- standard.

Because "[f]undamental fairness requires that Singh be given an opportunity to satisfy the BIA’s requirements," the court granted the petition for review, reversed the decision, and remanded the case to the BIA.

Balbir Singh v. INS, __ F.3d __, No. 98-70663 (9th Cir. May 25, 2000).