Vukmirovic, et al v. Holder

Filing

Filed opinion (MARY M. SCHROEDER, JOHNNIE B. RAWLINSON and JAMES MAXWELL MOODY) (MMS authoring) Accordingly, the Petition for Rehearing is GRANTED. The Petition for Review is DISMISSED. [7707021]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



PREDRAG VUKMIROVIC,
Petitioner,
ERIC H. HOLDER
General,

v.
Jr., Attorney
Respondent.




No. 05-75936
Agency No.
A072-443-690
OPINION ON
REHEARING

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 14, 2010—San Francisco, California
Filed April 6, 2011
Before: Mary M. Schroeder and Johnnie B. Rawlinson,
Circuit Judges, and James Maxwell Moody, District Judge.*
Opinion by Judge Schroeder

*The Honorable James Maxwell Moody, Senior United States District
Judge for the Eastern District of Arkansas, sitting by designation.

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VUKMIROVIC v. HOLDER

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COUNSEL
David Gardner, Los Angeles, California, for petitioner Predrag Vukmirovic.
Liza Murcia, Department of Justice, Washington, D.C., for
respondent Eric H. Holder Jr., Attorney General.

OPINION
SCHROEDER, Circuit Judge:
We have taken the unusual step of granting rehearing in
this case upon our review of the Government’s Petition for
Rehearing en Banc and Petitioner’s response to it. The panel
has now concluded that our original opinion, Vukmirovic v.
Holder, 621 F.3d 1043 (9th Cir. 2010), constituted a departure
from Ninth Circuit precedent and interpreted too broadly the
“exceptional circumstances” safe harbor for aliens removed in
absentia. See 8 U.S.C. § 1252b(c)(3)(A) (1994).
The Petitioner did not know about his removal proceeding
hearing because he had moved from his previous address and
had failed to advise his new lawyer and the immigration court
of his whereabouts. Consequently, he was removed in absentia. Petitioner’s current counsel has argued vigorously that

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VUKMIROVIC v. HOLDER

Petitioner’s case falls within the statutory provision permitting rescission of a removal order entered in absentia “if the
alien demonstrates that the failure to appear was because of
exceptional circumstances.” Id.
[1] Our previous cases applying this exception, however,
involved much more unusual circumstances than those here.
In Singh v. I.N.S., the petitioner had diligently and timely
appeared for all prior proceedings, but misunderstood the time
of the critical hearing where he would have been the beneficiary of an approved visa petition. 295 F.3d 1037, 1038-1039
(9th Cir. 2002). We held that exceptional circumstances
existed in that case because the petitioner had “diligently pursued his efforts to obtain lawful permanent residence status,
. . . had no possible reason to try to delay the hearing,” and
the order of removal would have resulted in “either the breakup of a family or if the family were to remain intact, the
ouster of three American citizens.” Id. at 1038, 1040. In Chete
Juarez v. Ashcroft, petitioner timely completed a change of
address form, but the immigration court did not receive it. 376
F.3d 944, 947 (9th Cir. 2004). We held that exceptional circumstances existed because Chete Juarez had appeared “for
every scheduled hearing (except the last, of which she
received no actual notice),” the missed hearing “represented
the culmination of years of efforts to regularize her status, . . .
she had no reason to try to delay the hearing,” and had she
been present, “the IJ likely would have granted [her] the relief
sought.” 376 F.3d 944, 948 (9th Cir. 2004).
[2] Unlike Singh and Chete Juarez, Petitioner did not demonstrate the diligence necessary for a finding of exceptional
circumstances. Aliens are advised in various ways that they
must keep the government apprised of any change of address.
See 8 U.S.C. §§ 1305 and 1306(b). This, petitioner did not do.
Moreover, there does not exist in this record any strong likelihood of relief. Accordingly, the Petition for Rehearing is
GRANTED. The Petition for Review is DISMISSED.