(CN) - The 6th Circuit reluctantly upheld what it deemed a "miscarriage of justice" by refusing to reopen the political asylum case of a man who was ordered deported after he showed up 40 minutes late to one of his hearings.
Anton Camaj, a citizen of the former Yugoslavia, had his first two removal hearings in Detroit in 1995, though the immigration judge conducted it by telephone from Chicago.
He was then notified by certified mail that his third hearing would be at 9 a.m. on Sept. 27, at a different building than the first two hearings.
When Camaj was not there by 9:34, the judge ordered him deported on the grounds that, through his absence, he had abandoned his defense. Camaj arrived just six minutes after the deportation order was entered.
Camaj appealed, and the federal appeals court in Cincinnati sent the case back to immigration authorities, asking them whether it would have been possible in 1995 to provide Camaj written notice of the date, time and location of the missed hearing "in person."
Immigration authorities reviewed the evidence and concluded that in-person service was "impracticable," so the certified letter sufficed.
Camaj again appealed, claiming the immigration judge could have faxed the hearing information from her office in Chicago to Detroit, where an INS agent could have handed it to him.
"However, Camaj supplied no evidence establishing these facts, even though he bore the burden of doing so," Judge Judith Barzilay wrote.
The court said the more compelling argument was that the immigration judge abused her discretion by ordering him deported simply because he was late.
But the court said it was unable to review this claim, "no matter how meritorious," because Camaj hadn't raised it earlier.
Lamenting its inability to reopen the case, the circuit panel stressed that "our current legislative, administrative, and judicial proceedings have combined to deprive a fellow human being of his day in the courts of our country."
"When a similar case again comes before this court -- as one surely will -- we would implore our colleagues to hold that slight tardiness to one's hearing does not qualify as a failure to appear at an immigration proceeding and that to order an individual's deportation under such circumstances constitutes an abuse of discretion," Barzilay wrote.
"This simple clarification would preclude the miscarriage of justice that Camaj today must endure and would make it less likely that this court will have its docket congested with similar cases in the future."
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