If she had consistently met all her other deadlines but got caught in multiple traffic accidents on her way to court, would you deport someone from the country solely because she was late for her hearing?
Judge Desai wouldn't. Judge Collins would.
Claudia Elena Montejo-Gonzalez had a court hearing in Seattle on October 31, 2019 at 8:30 a.m. She didn't have a lawyer, so she had to show up personally, so she left her house in Bremerton for the hearing at 6:45 a.m. That's typically sufficient time, since the trip normally takes 90 minutes or so at that time of day.
"But on their way to the hearing, petitioners encountered not one, but two major accidents that caused severe traffic." (She took pictures!) When she didn't show up on time, the immigration judge ordered her deported in absentia. "Upon arrival, Ms. Montejo-Gonzalez spoke with two clerks to try to have her case heard, but to no avail."
Judge Desai says that, under the totality of the circumstances, Ms. Montejo-Gonzalez did everything she could given the extraordinary situation to arrive on time, so shouldn't be deported in absentia. Whereas Judge Collins says that being late was her fault -- she should have left earlier -- so deportation without a hearing is okay.
To me, the correct answer depends on how late you are, and why. It definitely should not be the rule that whatever traffic you confront is your fault because you could always have left earlier than you did.
Here, Ms. Montejo-Gonzalez was two hours late. That's a lot. If she was only 15 minutes late, well, that's not good, but no way you deport someone in absentia for that, IMHO. You just hear her case on second call or whatever. Regardless, honestly, of the excuse -- if any -- for her absence. You don't get booted out of the country because you're 15 minutes late to something. Not in my world, anyway.
But two hours is more than 15 minutes. By that time, the judge had finished calling the calendar and had gone back into their chambers. Now, it's only 10:30 a.m. at that point, so if I'm the judge, I might well be miffed, but it's a serious issue to deport someone in absentia, so I'd have gone back to the bench, vented a little, and heard the thing on the merits. Again: it's only 10:30 in the morning. It's not like everyone's gone home for the day.
Now, Judge Collins is right. Ms. Montejo-Gonzalez could definitely have left earlier than 6:45 a.m. (Though that's already pretty early.) And if I was giving her advice, I definitely would have told her to leave by 6:00 a.m. or so. Sure, that might get her there a whole hour early, since it only typically takes 90 minutes (even with traffic) to arrive, so she'd be there at 7:30 a.m. But better to play it safe.
It nonetheless seems unfairly harsh to say that you get deported -- without a hearing -- if you leave 45 minutes too late. Wholly apart from the injustice of the rule that Judge Collins appears to advance: that traffic is always expected so is always your fault if you don't leave early enough.
Take a look at the route that Ms. Montejo-Gonzalez had to take. It's a long way around the bay to get to downtown Seattle. (Don't even get me started on risking the ferry when your continued presence in the country is at stake.) I plugged in the recommended departure times for Thursday, October 31 (the date of her hearing) into Google maps. That takes, according to Google, from a little under 90 minutes to maybe two and a half hours. But, on the relevant day, it took nearly four hours due to the two major accidents.
That seems fairly exceptional, no? Doesn't exceptionally (e.g., not reasonably anticipated) bad traffic count as a legitimate excuse?
Judge Collins doesn't seem to think so. But really?
Imagine, for example, that Ms. Montejo-Gonzalez had left SUPER early -- say, 5:30 a.m. -- but while she was on the road, the Tacoma Narrows Bridge was suddenly shut down. Maybe a ship hit the thing. (It happens.) Maybe there was a jumper. (Not a hypo: This happened to me once, when the Coronado Bridge was suddenly shut down and I had to go over it to drive one of my children to a game. I had to drive all the way around -- basically to Mexico -- to ultimately get there. Super delayed.)
At that point, there's basically only one way to Seattle: WAY around the bay -- all the way to Olympia and back -- and no way (even leaving early) you're getting to the hearing anywhere near on time. No matter how early you leave. (And that's assuming you don't get stuck on the bridge!)
Your fault? Deported in absentia? After all, it's just "traffic". And you could have left at 2:00 a.m., after all. Or spent the night -- or week -- in downtown Seattle, waiting for your hearing.
So, in my mind, unexpected traffic can be an excuse. But you gotta look at the totality of the thing. Was it just a little worse than usual? A lot worse than usual? Incredibly worse than usual? And what did you do to try to make it work. Did you (could you?) call the clerk? Did you show up while court was still in session? Do we believe you when you say you left when you did and were delayed as you were? All this goes into the assessment of the appropriate remedy.
But the thumb's gotta be on the scale for only deporting someone if they actually deserve to be kicked out of the country. Right?
