requires consideration of sworn statements of the respondent concerning his reasons for failure to appear. The essence of the ruling of the Ninth Circuit in Arrieta v. INS, supra, is that our decision in Matter of Grijalva, supra, requires consideration of sworn statements, and suggests that a sworn statement from the respondent, as appears to have been provided here, should support an affirmative defense to failure to appear. Id.

Then, there is the new "diligence requirement." This rule supposedly recognizes the statutory limit of 180 days for filing of a motion to reopen, but modifies it by the requirement of diligence, meaning that the motion must be filed immediately following the injury or impediment preventing the respondent's appearance. The majority claims this factor is permissible and warranted in the context of Congress' expression of intent that the foreclosure of a hearing be based on a "totality of the circumstances." While immediate filing of a motion to reopen based on exceptional circumstances may be enhanced by an early filing of such a motion, the way in which the majority invokes this consideration suggests, I believe, inappropriately, that such an early filing is necessary before the motion will be considered credible, notwithstanding the 180-day statutory period.

B. Prior Notice of Requirements as a Measure of Fairness

The respondent provided a sworn statement concerning the disability that prevented him from appearing on the appointed hearing date. At the time he did so, he was not on notice that more - such as a doctor's detailed statement, or a statement explaining the lack of one, was required of him. The Ninth Circuit has recognized that being put on notice of the requirements we are going to impose is essential to fairness. Arrieta v. INS, supra. In addition, the majority now imposes the new requirements that the respondent contact the Immigration Court and quickly file his motion under section 242B(c)(3) or be considered a slacker, who will be treated adversely as a matter of the "totality of the circumstances."

In my view, without regard to whether a serious headache is an exceptional circumstance, the majority's evidentiary requirements impose an excessively high test on a noncitizen who fell ill, and who provided a sworn statement, albeit perfunctory, concerning his illness, explaining why he did not seek traditional western medical treatment. Nevertheless, even assum

*In that precedent, we stated unequivocally that the presumption of effective service may be overcome by the affirmative defense of nondelivery or improper delivery by the Postal Service. To support such an affirmative defense, the respondent must present substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery or that nondelivery was not due to the respondent's failure to provide an address where he could receive mail. Matter of Grijalva, supra.

ing that a doctor's note regarding medical treatment or an explanation for the lack of it, or other corroborating documentation, is a reasonable requirement, a critical issue is how the Board should go about announcing such evidentiary requirements in deportation and removal hearings. This question raises issues of constitutional proportions. See Blancada v. Turnage, 891 F.2d 688 (9th Cir. 1989),

I differ with the majority's imposition of these criteria on the respondent for many of the reasons stated in my dissenting opinion in Matter of Villalba, supra, in which I emphasized that the protections of due process extend to respondents in deportation proceedings, who are entitled to notice of our requirements.3 See also Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988) (holding that administrative expediency must give way to protection of fundamental rights).*

Furthermore, I would have thought that a decision like this one could not have been issued following our issuance of Matter of W-F-, 21 I&N Dec. 503 (BIA 1996), in which we recognized an Immigration Judge's and our own discretionary authority to take into consideration the circumstances of the individual applicant. In this case, the circumstances are that the respondent is unrepresented, and even if he were represented, he has not been put on any notice that the Board would hold him to evidentiary requirements articulated specifically for the first time in his own case. Cf. United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir. 1975) (finding that "due process requires that the respondent in a deportation hearing receive timely notice; that he have an opportunity to be heard, . . . and to produce evidence").

I note that section 242(b) of the Act, 8 U.S.C. § 1252(b)(1994), remained in the statute when section 242B was first introduced and that it

'Deportation proceedings involve the potential deprivation of a significant liberty interest and must be conducted according to the principles of fundamental fairness and substantial justice. See Mathews v. Diaz, 426 U.S. 67, 77 (1976); Bridges v. Wixon, 326 U.S. 135, 154 (1945)("Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness."); see also Landon v. Plasencia, 459 U.S. 21, 34-35 (1982); Matter of G-, 20 I&N Dec. 764, 780 (BIA 1993) (citing Harisiades v. Shaughnessy, 342 U.S. 580 (1952)); Matter of Ching, 12 I&N Dec. 710, 712 (BIA 1968) (citing Wong Yang Sung v. McGrath, 339 U.S. 33 (1950)),

"Neither the statutory language nor the legislative history supports an interpretation that renders section 242B(c)(1) of the Act more a penalty provision than a deliberate measure to achieve prompt determinations and closure in the cases of deportable aliens. The overriding objective of Congress in enacting section 545 of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5061-67, was to bring aliens to their hearings, and the legislative history does not contain a punitive intent. See generally Iris Gomez, The Consequences of Nonappearance: Interpreting New Section 242B of the Immigration and Nationality Act, 30 San Diego L. Rev. 75 (1993) (stating that S.358, a later Conference Committee report, incorporated certain previously excluded enforcement provisions to ensure that aliens were properly notified and in fact would appear for their hearings).

is applicable to the respondent's case. The statute provides that deportation shall be determined only on a record made in a proceeding "before a special inquiry officer" and that a respondent is to be provided a "reasonable opportunity to be present." Section 242(b) of the Act; see also Purba v. INS, 884 F.2d 516, 517-18 (9th Cir. 1989) (holding that the statutory language of section 242(b), combined with the significance of credibility determinations in deportation matters, supports a bright-line rule requiring physical presence before the Immigration Judge); Maldonado-Perez v. INS, 865 F.2d 328, 333 (D.C. Cir. 1989) (holding that the Act implements constitutional requirements of a fair hearing).

In Sharma v. INS, 89 F.3d 545, 548 (9th Cir. 1996), the Ninth Circuit noted:

It is unclear why Congress left the "reasonable cause" language in section 1252 intact. Romero-Morales v. INS, 25 F.3d 125, 128-29 (2d Cir. 1994), We do not hold that Congress intended the language in section 242B to repeal the language in section 1252; in fact, we normally presume against such an interpretation. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976) ("It is, of course, a cardinal principle of statutory construction that repeals by implication are not favored.")."

These principles favor a remand of the instant case rather than an outright dismissal. If the majority wishes to demand that the respondent, who states that he could not afford a doctor and elected to take home remedies, document his case by (1) making an appointment with a doctor who can corroborate that his illness was serious and that he treated his illness in this way by election or for want of a physician he could afford, or, in the alternative (2) providing a statement that he could not access free or state-covered health care, and (3) obtaining sworn statements from friends, family, and employers that he was so debilitated, at the very least, he should be afforded an opportunity to do so before they adjudicate the merits of whether "exceptional circumstances" exist.

C. Evaluation of the Evidence of Record

A deportation or removal hearing involves an individual's potential separation from family, home, co-workers, and, often, his or her very safety and security. The respondent, who has indicated that he is seeking asy

"While section 242B contains specific provisions allowing an Immigration Judge to conduct a deportation proceeding in absentia, and different standards for excusing a failure to appear, the “reasonable opportunity to be present" under section 242(b) continues in force. "The Ninth Circuit concluded: "Because we find Petitioners' situation fits squarely within section 242B, we need not address whether section 1252(b)'s 'reasonable cause' standard applies in other cases."

lum, should not be denied his day in court unless absolutely mandated or voluntarily waived. This Board has long acknowledged that ready dismissal of a respondent's claims on technicalities will not do. See Matter of Martinez-Solis, 14 I&N Dec. 93, 95 (BIA 1972) (holding that a contested deportation hearing is a "quest for truth," not a sporting event); Matter of K-H-C-, 5 I&N Dec. 312, 314 (BIA 1953).

The burden of proof normally imposed in civil deportation proceedings, when not otherwise specified by statute, is that of a preponderance of the evidence. Where the evidence demonstrates that the facts asserted missing a hearing because of a serious debilitating headache treated with over-the-counter remedies because poverty and the lack of other meaningful treatment mitigated against the reasonableness of a doctor's visit — are likely to be true and have not been rebutted or controverted by any adverse evidence, this should be accepted as proof of a serious headache that made it impossible for the respondent to attend his hearing.

whether a "strong

The question, then, is the one the Board evades headache" such as the one the respondent experienced does constitute "exceptional circumstances." The only part of the record that addresses the evidence is the Immigration Judge's conclusion, rejected by the majority, that the absence of medical records verifying the illness is a sufficient basis, alone, on which to reject the claim of a serious illness. In addition, the respondent had no notice of the evidentiary requirements the majority now imposes. Under these circumstances, I believe that remand, and not dismissal, of his appeal is the fair or proper resolution.

II. THERE IS NO STATUTORY OR REGULATORY BAR TO CONSIDERATION OF THE RESPONDENT'S ASYLUM CLAIM

The respondent's appeal cannot be decided in a vacuum. His supposed failure to appear must be decided within the framework of the other statutory provisions pertaining to entry of in absentia deportation orders and the applicable constitutional due process protections. Even if, under the majority's new rules, he has lost his opportunity to be present and to answer the charges of deportability lodged against him, his case should be treated, at a minimum, consistently with the terms of the statute.

The statutory notice provisions of section 242B of the Act and corresponding regulations are distinct from the regulatory provisions at 8 C.F.R. § 3.2 (1997), which address motions to reopen to seek relief from deportation. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that a construction of the statutory language which takes into account the design of the statute as a whole is preferred); see also Coit Independence Joint Venture v. Federal Sav. & Loan Ins. Corp., 489 U.S. 561 (1989) (holding that "whole statute" interpretation dictates that statutory sections should

be read in harmony to achieve a harmonious whole); Matter of W-F-, supra (Rosenberg, concurring and dissenting).

Section 242B(e) of the Act has five pertinent subsections which relate to (1) failure to appear at a deportation proceeding (section 242B(e)(1)); (2) failure to depart under a grant of voluntary departure (section 242B(e)(2)); (3) failure to appear under a deportation order (section 242B(e)(3)); (4) failure to appear for an asylum hearing (section 242B(e)(4)); and (5) the relief covered for failure to appear for a hearing under section 242B(e)(1) (section 242B(e)(5)), Subsections (e)(2), (3), and (4) of the Act - involving the failure to depart voluntarily, the failure to appear when a deportation order has issued, and the failure to appear for an asylum hearing — state in language that is plain, clear, and unequivocal, that before these consequences may be imposed for nonappearance or noncompliance, the respondent must be warned orally and in writing of the consequences.

There is no evidence that the respondent ever received the oral warning that the statute requires. See section 242B(e)(1) of the Act; see also sections 242B(e)(2)-(4) of the Act; cf. section 242B(a) of the Act (requiring only written, but not oral, notice). Congress spent a significant amount of time expressly considering the legislative goals related to the provisions that govern in absentia deportation orders as applied to the question of deportability per se, and the impact on eligibility to apply for discretionary relief, as well as for asylum and withholding of deportation. See supra note 4. These particular provisions do not represent a last minute enactment, nor is their language equivocal or ambiguous. See INS v. Cardoza-Fonseca, 521 U.S. 320 (1987); see also Lindh v. Murphy, 117 S. Ct. 2059 (1997) (reaffirming, in a unanimous decision that upholds the presumption against retroactive application of statutes, the principle of statutory construction that requires language included in one section of a statute and excluded in another to be given different meaning and practical effect).

Even had the respondent been given the proper oral warnings concerning the potential for forfeiture of the right to present claims for certain forms of relief in lieu of deportation, that is not the end of the matter, however, as the record indicates that he is an asylum applicant. Although the statute precludes certain forms of discretionary relief for 5 years when the respondent has been given proper oral and written notice of the requirement to appear for a hearing or for any other obligatory purpose addressed in the statute, these preclusions do not apply across the board. Compare section 242B(e)(1) (referring to oral and written notice required under section 242B(a)(2)) and section 242B(e)(4)(B) (referring to oral and written notice of an asylum hearing). In the event of a respondent's failure to appear for a hearing, the forms of relief precluded after entry of an in absentia order cover voluntary departure, suspension of deportation, and adjustment of status, including registry. See section