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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent’s application for adjustment of status. The Board concluded the respondent established a prima facie case of ineffective assistance of counsel based on allegations that his prior attorney failed to prepare and submit an Affidavit of Support (Form I-864) in connection with adjustment application. The decision was written by Member Linda Wendtland.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent’s application for adjustment of status. The Board concluded the respondent established a prima facie case of ineffective assistance of counsel based on allegations that his prior attorney failed to prepare and submit an Affidavit of Support (Form I-864) in connection with adjustment application. The decision was written by Member Linda Wendtland.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent’s application for adjustment of status. The Board concluded the respondent established a prima facie case of ineffective assistance of counsel based on allegations that his prior attorney failed to prepare and submit an Affidavit of Support (Form I-864) in connection with adjustment application. The decision was written by Member Linda Wendtland.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
1015 N. Lake Avenue, Suite 209 Kansas City, MO 64111 Name: KURGAT, DAVID KIRWA U.S. Department of Justice Executive Ofce fr Immigration Review Board of Immigration Appeals Ofce of the Chief Clerk 5107 Leesburg Pike, Suite 2000 Fals Church. Virginia 20530 OHS/ICE Office of Chief Counsel - KAN 2345 Grand Blvd., Suite 500 Kansas City, MO 64108 A 089-003-420 Date of this Notice: 4/25/2014 Enclosed is a copy of the Board's decision and order in the above-referenced case. Enclosure Panel Members: Wendtland, Linda S. Sincerely, Donna Carr Chief Clerk For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t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: David Kirwa Kurgat, A089 003 420 (BIA Apr. 25, 2014) U.S. Department.of Justice Executive Ofce fr Immigation Review Decision of the Board of Immigation Appeals Falls Church, Virginia 20530 File: A089 003 420 - Kasas City, MO In re: DAVID KIRWA KURGAT I REMOVAL PROCEEDINGS APPEAL AND MOTION ON BEHALF OF RESPONDENT: Christopher B. McKinney, Esquire ON BEHALF OF OHS: CHARGE: Justin Howad Assistant Chief Counsel Date: Notice: Sec. 237(a)(l)(C)(i), I&N Act [8 U.S.C. 1227(a)(l)(C)(i) ] - Nonimigrat - violated conditions of status APPLICATION: Adjustment of status; continuace; voluntay depaure APR 25 2014 The respondent appeals the Immigration Judge's March 28, 2012, decision denying the respondent's request fr a continuace, pretermitting his application fr adjustment of status uder section 245(a) of the Iigration and Nationaity Act, 8 U.S.C. 1255(a), ad denying his application fr voluntay departre. During te pendency of his appeal, the respondent fled a motion to remad based on a claim of inefective assistance of counsel. The motion will be grated, and te record will be remanded to the Immigration Judge fr frther proceedings consistent with tis opinion ad fr entry of a new decision. Through his motion, the respondent contends that he should be permited to apply fr adjustment of stats uder section 245(a) of the Act because his application was preterited by the Immigration Judge due to inefective assistance of cousel. See Respondent's Motion at 5-9. According to te respondent, his prior cousel filed to complete ad submit a For 1-864 Afdavit of Support despite the fct that he had provided prior counsel with his entire fle and his sponsor had provided prior cousel with all of the necessay documentation to complete the frm via fax prior to te respondent's proceedings on Mach 28, 2012, resulting in preterission of his application. See id. at 6. The respondent frher claims that prior counsel advised him that a continuace would be grated at the heaing on Mach 28, 2012, such that his witesses need not appear in court. See id. As such, the respondent alleges that he provided prior counsel with all of te necessay infrmation needed to complete the adjustment of status application but prior counsel filed to do so, instead relying on a request fr a continuance at the March 28, 2012, hearing. See id. at 5-9. A successfl motion based on a claim of inefective assistance of counsel must satisf two conditions. First, the clam must comply with Mater of Lozada, 19 l&N Dec. 637, 639 (IA 1988). Briefy, the Lozada requirements are (1) tat the motion be suppored by an afdavit detailing counsel's filings, (2) that counsel be infred of the allegations, and (3) that -- w 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: David Kirwa Kurgat, A089 003 420 (BIA Apr. 25, 2014) A089 003 420 te motion show that disciplinary charges have been fled wit the appropriate autority, or if not, adequately explain why not. Id. Second, te alien "must also show that he or she wa prejudiced by the actions or inactions of counsel." See Mater of Assaad, 23 l&N Dec. 553, 556 (BIA 2003). I ths case, the respondent has complied wit the procedural requirements of Mater of Lozada, supra. As to the issue of prejudice, te respondent claims that he ad his sponsor provided all of the inforation needed to complete the Afdavit of Support prior to the March 28, 2012, heang. In his response, prior counsel submitted evdence showing tat te sponsor faed to him, inter alia, a sum a of her prior year's t retu ad a employment leter.1 However, prior counsel claims tat fr various reasons tis iforation was isufcient to complete the Afdavit of Suppor. Along wit his motion, te respondent has provided an afdavit fom the sponsor. In her afdavit, te sponsor states she was told by prior counsel that he had received her documents ad tat he was going to fle the Afdavit of Support befre the next heaing. Tus, the respective clams in regad to tis sponsor by the respondent ad prior counsel ae in contradiction. Te respondent aso asserts though his motion that he provided prior couel wit his entire fle fom a previous counsel befre the March 28, 2012, hearing. I this regad, prior cousel states in his responses to bot the respondent and the bar ofcias tat he did not receive the fle util afer the Mach 28, 2012, proceedings. For his pa, te respondent provided a fa he sent to prior counsel fom detention on Febry 15, 2012, ad states that, along wit that fa, he faed over his entre fle. Wile the fa submitted was only a page in lengt, it refrs to a puorted previous fax, ad on the next page is a letter dated Februry 17, 2012, saying "I hereby fa to you" the respondent's convicton records. Again, as to ths issue, te respective claims by te respondent ad prior counsel ae in contradiction. Te respondent aso asserts that prior counsel advised him tat court appeaaces by his witesses were not necessay on March 28, 2012, on te basis of a request fr a continuace. See Respondent's Motion at 6. In tis regard, the respondent has provided adavit fom these witesses stating their undertanding tat prior counsel had indicated tat they need not attend the Mach 28, 2012, heaing. However, prior counsel disputes tis claim vigorously in his responses, asserting tat he would never advise a client in ths way because he could never kow tat a Immigraton Judge would in fct gant a continuance. Again, te fcts on te issue ae in dispute. Under these circumstaces, we conclude that fr puroses of the instant appeal ad motion, the respondent has met his burden of establishing a prima facie inefective assistace of counsel claim, requng a remad to the Immigation Judge to detere the tuth in regad to te various issues ad claims by both the respondent ad prior counsel. I ths regard, on remad, the Immigation Judge should develop the record and fnd fcts pertinent to te inefective 1 Altough te employment leter is appaently not on leterhead ad there is no explicit indication of te title of te person who siged the document, there is a business addess at the botom of the leter ad te notation "R AON" appeas next to the signatory's nae, which may indicate a title ador position. 2 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: David Kirwa Kurgat, A089 003 420 (BIA Apr. 25, 2014) A089 003 420 asistace of counsel claim. The Immigation Judge should also consider the respondent's aguments on appeal that he misstated the respondent's crmina record in denying volunty depaure. I ts regad, we also note tat it is incumbent on te Immigation Judge to balace all of the fvorable and unfavorable fcts in assessing the respondent's mora chaacter ad i exercising discretion. Accordingly, the motion will be ganted, ad the record will be remaded to the Imigation Judge fr fer proceedings consistent wt this opinion and fr enty of a new decision. ORER: The motion is granted, ad the record is remaded to te Immigation Judge fr fher proceedings consistent with this opinion ad fr enty of a new decision. 3 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: David Kirwa Kurgat, A089 003 420 (BIA Apr. 25, 2014) . UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT KANSAS CITY, MISSOURI File: A089-003-420 In the Matter of DAVID KIRWA KURGAT RESPONDENT CHARGES: March 28, 2012 IN REMOVAL PROCEEDINGS 237 (a) (1) (C) (i). APPLICATIONS: Continuance; adjustment of status. ON BEHALF OF RESPONDENT: WAYNESWORTH ANDERSON, ESQUIRE ON BEHALF OF DHS: JUSTIN HOWARD, ESQUIRE ORAL DECISION OF THE IMMIGRATION JUDGE The Respondent is a 31-year-old male, native and citizen of the country of Kenya, who was issued a Notice to Appear on August 21, 2008. See Exhibit 1. At a Master Calendar hearing on April 15, 2010, the Respondent appeared with counsel and submitted a written pleading conceding allegations one through four in the Notice to Appear, as well as the charge of removability. Kenya was I m m i g r a n t
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( designated as the country of removal by the Respondent. See Section 240 (c) (1) (A) of the Act. The issue before the Court today concerns the Respondent's application for a continuance of his Merit hearing in order to further prepare his application for adjustment of status pursuant to an approved I-130. This matter has been pending since August 21, 2008, when the Respondent was personally served with the Notice to Appear. The matter was then first scheduled October 1 of 2008, and rescheduled to October 8, 2008, when the Respondent was detained. It was then rescheduled after his appearance by televideo to September 10, 2009. At that time, the Respondent requested a continuance to obtain an attorney and the matter was postponed to January 14, 2010, when it was deliberately advanced, on the docket, to the next setting on April 15, 2010. At that time, the matter was postponed at Respondent's request for attorney preparation. The next setting was November 4, 2010, at which time the matter was postponed to allow the Respondent to file his application for adjustment and pursue an I-130. The next setting was August 25, 2011, at which time the matter was continued for attorney preparation by Respondent's counsel. The next setting occurred when the Respondent was detained once again on February 24, 2012. At that time, the matter was continued until the present setting to allow the Respondent to prepare his documents in support of his A089-003-420 2 March 28, 2012 I m m i g r a n t
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w w w . i r a c . n e t .
I ( application for adjustment of status. It should be noted that another previously set Merit hearing was removed from that spot in the docket today and rescheduled to accomodate Respondent's hearing request on the merits of his adjustment application. . Respondent has appeared today with counsel requesting a further continuance because the Form I-864, Affidavit of Support, is not prepared or filed with the Court. The Respondent's request for a further postponement of his case is denied. STATEMENT OF THE LAW Pursuant to 8 C.F. R. Section 1240. 6, an Imigration Judge may decline to grant a request for a continuance unless the party seeking the postponement can demonstrate "good cause" for the delay. The request for the delay may be made at his or her own instance or either party and the Imigration Judge has broad discretion to grant or deny the request. The regulations do not contain an exact definition of what constitutes "good cause" for a continuance. The BIA has defined the parameters of "good cause" in different ways, depending on the facts and circumstances presented. For example, in Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983), the Board set a high standard for adjudicating Motions to Continue to give the Respondent more time to prepare and the opportunity to obtain additional evidence. Under the Sibrun ruling, these motions must be accompanied, at a minimum, by a "reasonable A089-003-420 3 March 28, 2012 Mt 4 . . . . . &.1 A . I m m i g r a n t
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w w w . i r a c . n e t . l i i 1. showing that the lack of preparation occurred despite a diligent good-faith effort to be ready to proceed. " Id at 356. The Board of Immigration Appeals has further recognized, in Matter of Hashmi, 24 I&N Dec. 785, 787 (BIA 2009), that.an !J's decision denying a continuance will not be reversed on appeal unless the Respondent establishes that the denial caused him actual prejudice and harm and it materially affected the outcome his case. In the Eighth Circuit case of Grass v. Gonzales, 418 F. 3d 876 (8th Cir. 2005), it was held that there was no jurisdic.tion to review the wholly discretionary decision by an Imigration Judge to deny a request for continuance of a removal hearing. FINDINGS AND CONCLUSIONS In consideration of the procedural history in this case, the Court finds the Respondent has failed to complete his application tor relief from removal in a timely manner and the reasons offered for not completing it do not constitute "good cause" to postpone the removal proceedings any longer. Further, Respondent has been given an adequate opportunity to prepare his applications and requests at this point and there's no justifiable excuse for delaying his case any further. Based on the Responent's previous convictions for driving under the influence of alcohol in 2006, two times in 2009; and in 2010, he has not established sufficient good moral character to justify a A089-003-420 4 March 28, 2012 I m m i g r a n t
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w w w . i r a c . n e t . ( grant of post-decision voluntary departure. Therefore, in consideration of all the forgoing, the following orders are entered: ORDER IT IS HEREBY ORDERED that 'Respondent's Motion for Continuance is denied. IT IS FURTHER ORDERED that the Respondent having failed to complete his application for adjustment of status that the same is hereby pretermitted by the Court. The Respondent is not eligible for voluntary departure, having not established good moral character for the requisite period of time under the statutes. Therefore, the Respondent is ordered removed to the country of Kenya pursuant to the charge contained in the Notice to Appear. igration Judge A089-003-420 5 March 28, 2012 I m m i g r a n t
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w w w . i r a c . n e t / ( ( . CERTIFICATE PAGE I hereby certify that the attached proceeding before JUDGE JOHN R. O'MALLEY, in the matter of: DAVID KIRWA KURGAT A089-003-420 KANSAS CITY, MISSOURI is an accurate, verbatim transcript of the recording as provided by the Executive Office for Imigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review. Norma Danfelt (Transcriber) YORK STENOGRPHIC SERVICES, Inc. June 11, 2012 (Completion Date) sac/jma I m m i g r a n t