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In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia because the record did contain contain an entry of appearance (Form EOIR-28) for the attorney to whom the hearing notice was sent. The decision was written by Member Elise Manuel and joined by Vice Chairman Charles Adkins-Blanch and Member Sharon Hoffman.
In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia because the record did contain contain an entry of appearance (Form EOIR-28) for the attorney to whom the hearing notice was sent. The decision was written by Member Elise Manuel and joined by Vice Chairman Charles Adkins-Blanch and Member Sharon Hoffman.
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In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia because the record did contain contain an entry of appearance (Form EOIR-28) for the attorney to whom the hearing notice was sent. The decision was written by Member Elise Manuel and joined by Vice Chairman Charles Adkins-Blanch and Member Sharon Hoffman.
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5540 Centeriew Dr., Suite 200 Raleigh, NC 27606 Name: KYALO, FELIX MUSEMBI U.S. 0gBtlm00l 0Ju5l00 Executive Ofce fr Immigration Review Board of Immigration Appeals Ofce of the Clerk 5107 lesburg Pike, Suite 2000 Fals Church, Virginia 22041 OHS/ICE Ofice of Chief Counsel - CHL 5701 Executive Ctr Dr., Ste 300 Charlotte, NC 28212 A 200-578-009 Date of this notice: 916/2013 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure |D6l M6uD6f5` P0KP6-BPC, LB|06 h. M0P0BP, DB|0P MBPU0, c60 Sincerely, |on Ca Donna Carr Chief Clerk LUS0@0S U56fl6D: 0CK0l I m m i g r a n t
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w w w . i r a c . n e t Cite as: Felix Musembi Kyalo, A200 578 009 (BIA Sept. 6, 2013) For more unpublished BIA decisions, visit www.irac.net/unpublished U.S. 6g8Fm6B of J0566 Executive Ofce RrImmigation Review Decision of the Boad of Immigation Appeals Falls c ' hurch, Virginia 2241 File: A200 578 009 - Charlotte, NC In re: FELIX MUSEMBI KY ALO REMOVAL PROCEEDINGS APPEAL Date: ON BEHALF OF RESPONDENT: Japheth N. Matemu, Esquire ON BEHALF OF OHS: Scott D. Criss Assistant Chief Counsel APPLICATION: Reopening SEP 0 6 Z013 The respondent, a native ad citizen of Kenya, has appealed the Immigation Judge's decision of December 5, 2012. In that decision, the Immigration Judge denied the respondent's motion to reopen removal proceedings in which he was ordered removed in absentia on November 8, 2012. The Department of Homeland Security (DHS) has fled a opposition to the appeal. The appeal will be sustained. The record indicates that notice of the respondent's hearing was mailed to counsel, Japheth N. Matemu, Esquire. Normally, notice to counsel constitutes notce to the respondent. See section 240(b)(5)(A) of the Immigtion ad Nationality Act, 8 U.S.C. 1229a(b)(5)(A); 8 C.F.R. 1003.26(c)(2); see also Mater of Barocio, 19 I&N Dec. 255 (BIA 1985) (holding that notice to an alien's counsel constitutes notice to the alien); 8 C.F.R. 292.S(a). Here however, the record does not contain a Notice of Entry of Appeaace as Attorey or Representative Befre the Immigtion Cour (For EOIR-28) fom Mr. Matemu or ay other counsel. See 8 C.F.R. 1292.4(a). Nor is there any independent evidence in the record that this counsel notifed the respondent of the hearing. We therefre conclude that the respondent was not properly notifed of the time, date, and place of the removal hearing wherein he was ordered removed in absentia in accordance with section 239(a)(2)(A) of the Act, 8 U.S.C. 1229(a)(2)(A). Accordingly, the fllowing orders will be entered. ORDER: The appeal is sustained. FURTHER ORDER: The order of removal is rescinded, and the record is remaded to the Immigtion Judge fr frther proceedings consistent with the fregoing opinion and fr the entr of a new decision. FOR L BOARD I m m i g r a n t
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w w w . i r a c . n e t Cite as: Felix Musembi Kyalo, A200 578 009 (BIA Sept. 6, 2013) .. .
'f . - UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW U.S. IMMIGRATION COURT 5701 Executive Center Drive, Suite 400 Charlotte, North Carolina 28212 IN THE MATTER OF: Kyalo, Felix Musembi CASE #. 200-578-009 ALIEN ATTORNEY: Japheth Matemu., Esq DECISION ON A MOTION.
ONLY A MOTION TO ROPEN has been fled in te above captioned case. The Motion has been duly considered and it appears to the Court that: [ ] The resuest is timely and reasonable. Therefre, IT IS HEREBY ORDERED that the Motio NED. . [/The Motion has been duly considered and it appears to the Court that no substantial grounds have been advanced to war ant its grant. Therefre, IT IS HEREBY ORDERED that the Motion be and the same is hereby DENIED. .. A _ R (I' J:. [ ] Adjou to individual lmaster calenda hearing on at am/pm. This document was served to: [ X ] District Counsel [ X ] Counsel fr Respondent I Applicant [ X J Respondent I Applicant Mailed out: / -j--/ By: P, Dated thiry of __. ,717 Hon. BARY J. PET U.S. Immigration Judge I m m i g r a n t
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w w w . i r a c . n e t Respondent's motion to reopen is denied for the reasons set forth in DHS's opposition. On July 9, 2012, the Court granted respondent's motion fr a continuance and rescheduled the matter to November 8, 2012. The Court's decision on the motion and respondent's hearing notice for November 8, 2012, was served on respondent's counsel of record. Service on a respondent's atorey of record constitutes proper service. 8 C.F.R. 1292.S(a)(providing that whenever a represented person is required to be given notice, such notice shall be given to the attorney or representative of record, or to the person himself if unrepresented); Matter of Barocio, 19 I&N Dec. 255, 258 (BIA 1985) ("[N]otice to [the respondents'] attorey constitutes notice of the decision to the respondents"). Therefore, respondent received "written notice" for purposes of INA 240(b)(5), 239(a)(2); see also 8 C.F.R. 1003.23(b)(4)(ii). In respondent's motion to reopen counsel contends he never received the November 8, 2012 hearing notice. Counsel frther states that he leared that the Cour granted the motion to continue by calling the Cour. The standard practice in the Charlotte Immigration Court in such circumstances is to advise the attorey that the motion fr a continuance has been granted and advise of the new hearing date. Thus, counsel would have been advised of the November 8, 2012 rescheduled hearing when he checked the status of his motion. Even if counsel had not been infrmed of the new date he was on notice that the matter was rescheduled and was under an obligation to determine the new hearing date by again calling the Court or calling the EOIR hotline. Counsel did neither notwithstanding that he was on notice since at least July 11, 2012 (the continued master calendar date) that the matter had been rescheduled. Counsel took no action between July 11, 2012, and November 8, 2012 (the date the in absentia order was entered) to ascertain the new hearing date. As such, counsel is wholly responsible fr any lack of notice regarding the November 8, 2012 hearing date. To the extent respondent's motion reopen is based upon inefective assistance of counsel, he is required to comply with the procedural requirements fr proving attorey negligence set frh in Matter of Lozada, 19 I&N Dec. 63 7 (BIA 1988). Respondent has filed to do so. Respondent's motion to reopen is therefre DENIED. Q; " F0x[ Fj Co 0Apgp . Df 0 5 2012 At JUur OE-3