Chander, Vishal

The Chander Law Firm

3102 Maple Avenue, Suite 450
Dallas, TX 75201
Name: NGANGA, PAUL MUCHAI
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Qlce of the Clerk
5107 leesburg Pike. Suite 2000
Fls Cl11rch, Vrginia 20530
OHS/ICE Office of Chief Counsel - DAL
125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324
A 087-196-423
Date of this notice: 10/17/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Sincerely,
DO c L
Donna Car
Chief Clerk
Usertea m: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Paul Muchai Nganga, A087 196 423 (BIA Oct. 17, 2013)
NGANGA, PAUL MUCHAI
P.O. BOX 457 KALUNONI
JUJA,KENYA
Name: NGANGA, PAUL MUCHAI
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike. Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel DAL
125 E. John Carpenter Fw, Ste. 500
Irving, TX 75062-2324
A 087-196-423
Date of this notice: 10/17/2013
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorey or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed fom the United States or afrms an Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Sincerely,
Do c O
Donna Carr
Chief Clerk
Useream: LJuczct
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Cite as: Paul Muchai Nganga, A087 196 423 (BIA Oct. 17, 2013)
.b.DcaHcnt0fJucc
Exe Ofc fr mQoaRe
Ddouofte B ofmgouApps
FalChmVga2201
File: A087 196 423 - Dalas, TX
I re: PAUL MCH NGAGA
I ROVA PROCEEIGS
APPEA
Date:
ON BEF OF RSPONENT: Vishal Chander; Esquire
APPLICATION: Reopening
OCT
17
2013
The respondent has appealed the Immigration Judge's April 25, 2012, decision that denied
the respondent's motion to repen ad rescind prcedings. The record will be remanded.
The respondent w ordered remove m absentia on Ocober 18, 2010. On April 15, 2011,
the respondent fled a motion to repen aguing that hs failure to appea was due to exceptional
circumstaces. cc section 240(b)(S)(C)(i) of the I igation and Nationality Act, 8 U.S.C.
1229a()(5)(C)(i) (stating that a motion to repen to rescind an in absentia orde baed upon
exceptonal circumstaces must be fled within 180 days of the date of the Immigaton Judge's
in absentia orde). The Immigation Judge delined to consider the respondent's moton to
reopen relying on te depare regulation, 8 C.F.R 1003.23()(l), as the basis fr his decisfon.
Subsequent to the decision of the Immigaton Judge, a precedent deision regading the
applicability of the deartre ba to a aien's stator right to fle a motion to repen was
issue by the United Staes Cour of Apeas fr the Fifh Circit. I wclu-Cwv. Hokr,
697 F.3d 257 (5
t
Cir. 2012), the Fifh Cicuit held that a "alien's ability to exercise his
statutor right to fle a motion to reopen is not contnlent upon his presnce in the United States."
Id. a 264. cculsoL v. Holr, 691 F.3d 273 (9 Cir. 2012) (regading the applcability of
the depaure ba to a moton to recnsider). We fd that a remand is wa te in mcase to
allow the Imigation Judge to issue a ne decision in light of this interening Fifh Circit
decision.
Accordingly, the fllowing order shall be entered:
ORER: The record is remanded to te Immigtion Judge for the entry of a new decision
consistent with this opinion.
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Cite as: Paul Muchai Nganga, A087 196 423 (BIA Oct. 17, 2013)

`: T
CHADER, VISH
3102 MAPLE AVENE
DALLAS, TX 75201
IN THE MTTER OF
NGAGA, PAUL MUCHAI
_: ^''
UITED STATES DEPATMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COUT
1100 COMMERCE ST., ROOM 404
DALLAS, TX 75242
STE 450
FILE A 087-196-423 DATE: Apr 25, 2012
UABLE TO FORWARD - NO ADRESS PROVIDED
ATTACHED IS A COPY OF THE DECISION OF THE IMIGRTION JUDGE. THIS DECISION
IS FINA ULESS A APPEA IS FILED WITH THE BOAD OF IMIGRATION APPEALS
WITHIN 30 CAENDA DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ECLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPAING YOU APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUENTS, A FEE OR FEE WAIVER REQUEST
MUST BE MILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMIGRTION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINA UNLESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMIGRTION AD NATIONALITY ACT, 8 U.S.C.
SECTION 1252B{c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6) I
8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRTION COURT
1100 COMERCE ST., ROOM 404
DALLAS, TX 75242
OTHER:
CC: ALEN-MCCOY, MICHELLE
125 E. HWY 114, STE 500
IRVING, TX, 75062
COURT cR
IMMIGR ON COURT FF

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Cite as: Paul Muchai Nganga, A087 196 423 (BIA Oct. 17, 2013)
UNI1ED STATES DEPARTMENT OF JUSTICE
EXCUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRTION COURT
IN THE MATTER OF:
NGAN GA, PAUL
RESPONDENT
CHARGE:
APPLICATION:
DALLAS, TEXAS
)
)
)
)
)
)
)
I REMOVAL PROCEEDINGS
A087-196-423
Section 237(a)(l)(B of the Imigration and
Nationality Act, as amended, in that afer admission
as a nonimmigant under Section 101(a)(l5) of te
Act, you have remained in the United States fr a
time longer than permitted
Motion to Rescind !nZbscnt/dOrder and Reopen
Proceedings
ON BEHALF OF THE RESPONDENT ON BEHLF OF THE
DEPARTMENT OF HOMELAND
SECURITY
Vishal Chandler, Esq.
Te Chandler Law Firm
3102 Maple A venue
Suite 450
Dallas, TX 75201
Michelle Allen-McCoy, Esq.
Assistant Chief Counsel - ICE
125 E. Joh Carpenter Freeway
Suite 500
Irving, TX 75062
ORDER OF THE COURT
Te Respondent has fled a Motion to Reopen in the above-captioned cae. For
the fllowing reasons, the Motion will be DENIED.
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FACTUAL AND PROCEDURL HISTORY
The Respondent is a 36 yea-old male, native and citizen of Kenya. Exhibit 1.
On or about Januay 17, 1996, he was admitted to the United States at or near Boston,
Massachusetts. !J He was admitted to atend Wichita State University in Wichit,
Kansas. !d.
The Respondent attended Wichita State University during the spring of 1996.
Exhibit 7. In the fll of 1996, he tansfred to Butler Community College and attended
classes there through the fall of 1999. !d. He tansfrred to Cental State University,
which is curently known as The University of Central Oklahoma, in Edmond, Oklahoma
during the spring semester in the year 2000. Exhibits I & 7. On May 4, 2001, the
Respondent graduated fom the University of Cental Oklahoma with his Bachelor
Degee. Exhibits 1 & 7.
On September 11, 2007, the Respondent ma ied USC Shannon LaShawn
Johnson in Dallas Count, Texas. Respondent's Motion to Reopen and Rescind Order of
Removal, Tab D.
On June 19, 2008, the Respondent's wife fled a Petition fr Alien Relative (I-
130) on his behalf and he fled an Application to Register Permanent Residence or Adjust
Status (I-485). Exhibit 7. Te 1-130 was denied because the Respondent's wif failed to
appear fr the interview and the 1-485 was subsequently denied due to visa unavailability.
!d.
On February 19, 2010, the Depament of Homeland Security (OHS or
Goverent) compiled a Record of Deportable/lnadmissible Alien (For 1-213) against
the Respondent ad fund that a Notice to Appear (NTA) should be issued. Exhibit 7. In
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the I-213, the Goverent fund that te Respondent had stayed in te coutry beyond
his authorized period of stay. !d.
The DHS issued an NTA to the Respondent on March 16, 2010, via cerifed mail.
Exhibits I & 2. The NTA charged him with removability under Section 237(a)(l)(B) of
the Immigration ad Nationalit Act (IA or the Act). Exhibit 1.
On May 7, 2010, the Respondent submitted an Alien Change of Address
ForImmigration Court (EOIR-33) to the Dallas Imigation Court (Court). Exhibit 4.
On Jue 29, 2010, the Cour mailed a Notice of Hearing, by reglar mail, to Respondent
at the address provided in the EOIR-33. Exhibit 5. The Notice set the Respondent's
heaing date fr October 18, 2010, at 9:00 AM. !J.
On September 23, 2010, the Cout received a hadwitten letter fom the
Respondent stating that he was "voluntaily leaving the country" on September 21, 2010,
and would not be able to attend his hearing on October 18, 2010. Exhibit 6. He did not
provide the reason why he was leaving the county and would be unable to attend. !d.
The Respondent accordingly filed to appear at his hearing thus the proceedings
were conducted in absentia. At the hearing, the Goverent submitted documentary
evidence establishing te truth of the fctual allegations contained in the NT A. Order of
the Immigration Judge, dated October 18, 2010. Te Court fund te Respondent
removable as charged by clear, unequivocal, and convincing evidence. See 8 C.F.R.
1003.26(c). Accordingly, the Court designated the Respondent's county of removal as
Kenya, ad ordered him removed to Kenya in absentia. Id.
On April 15, 2011, the Respondent submited, though counsel, the present
Motion to Reopen arguing that te in absentia order should be rescinded because his
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failure to appear was caused by exceptional circumstaces. Respondent's Motion to
Rescind In Absentia Order. Te Court will deny his Motion fr the reasons stated below.
LEGAL STANDARS
An in absentia removal order pursuant to section 240(b)(5) of the Act may be
rescinded upon a Motion to Reopen if the Court exercises its sua sponte authority to
reopen in "tuly exceptional situations," where the interests of justice would be served.
Matter ofG-D-, 221.& N. Dec. 1132, 1133 (BJ.A. 1999); see also Matter of J-J-, 21 I. &
N. Dec. 976 (B.l.A. 1997) (holding that the Cour has discretion to reopen a case sua
sponte; however, that discretion is limited to cases where exceptional circumstances are
demonstated).
However, in order fr the Court to consider such an exercise of discretion, it must
frst have jurisdiction over the respondent's case. The "deparure ba" articulated in the
Code of Federal Regulations states that a motion to reopen shall not be made by, or on
behalf of, a person "who is the subject of removal, deportation, or exclusion proceedings
subsequent to his or her departure fom the United States." 8 C.F.R 1003.23(b)(l).
The Fifh Circuit recently interpreted this provision's application. Toora v. Holder, 603
F. 3d 282 (5th Cir. 2010). The Circuit Court explained that the bar clearly applied to an
alien who was already in removal proceedings and lef the United States aer a removal
order was entered against hm. Id. at 286. Te real question befre the Circuit Court wa
whether the "departure bar applie[ d] when a alien depats the United States afer
removal proceedings are initiated but before an order of removal [wa]s entered. Id.
(emphasis in original). Looking to the plain language of the provision, the Circuit Court
answered the question in the affrative. The Circuit Court held that an alien who leaves
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the United States afer removal proceedings, and has an in absentia removal order entered
against him while out of the county, canot have his Motion to Reopen considered by
the Immigation Court in which his case was initiated. Id. at 288. When the alien lef the
county, the Immigration Court was divested of its power to hear ay motions subsequent
to the in absentia order. Id.
ANALYSIS
In the present case, the Immigration Cour does not have jurisdiction to consider
the Respondent's Motion to Rescind te Order of Removal and Reopen the case. As the
Fif Circuit explained in Toora v. Holder, the departure bar applies "when an alien
depas the United States aer removal proceedings are initiated but before an order of
removal is entered." 603 F. 3d at 286. Removal proceedings were initiated against the
Respondent on March 16, 20 I 0. See Exhbit 1. He received a Notice of Heaing ad
acknowledged receipt of that notice through his handwrtten leter sent to the Court. See
Exhibits 5 & 6. Since the Respondent lef the United States on September 21, 20 I 0, he
caused an in absentia order to entered against him at the October 18, 2010 hearing. See
Exhibit 6; Respondent's Motion to Rescind mAbsentia Order, Tab F; Order of te
Immigration Judge, dated October 18, 2010. Since the Cour is now divested of its
jurisdiction over the Respondent, it fnds that itself barred fom reviewing the his Motion
to Reopen. See 8 C.F.R. 1003.23(b)(I).
CONCLUSION
The Court concludes, fr the reasons stated above, it is bared fom considering
the Respondent's Motion to Reopen. As such, the merits of the exceptional
circumstances argument contained therein will not be considered.
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ORDER
IT IS HEREBY ORERED that the Respondent's Motion to Reopen is
DENIED.
This 25
t
day of April 2012
Deitrich H. Sims
United States Immigation Judge
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