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In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an in absentia removal order upon finding the respondent’s failure to appear was due to “exceptional circumstances,” namely his former attorney's failure to answer telephone calls or notify the respondent of the time and date of the hearing. The decision was written by Member Sharon Hoffman and joined by Member John Guendelsberger and Member Elise Manuel.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an in absentia removal order upon finding the respondent’s failure to appear was due to “exceptional circumstances,” namely his former attorney's failure to answer telephone calls or notify the respondent of the time and date of the hearing. The decision was written by Member Sharon Hoffman and joined by Member John Guendelsberger and Member Elise Manuel.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an in absentia removal order upon finding the respondent’s failure to appear was due to “exceptional circumstances,” namely his former attorney's failure to answer telephone calls or notify the respondent of the time and date of the hearing. The decision was written by Member Sharon Hoffman and joined by Member John Guendelsberger and Member Elise Manuel.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
111 NE 1st Street, 3rd Floor Miami, FL 33132 U.S. Department of Justice Executive Ofce fr Imigration Review Boaro/ I|grat|on4ppeals Ojceo/t/eclerk 5107 Leeburg Pik, Suite 2000 Fall Church, Vrinia 20530 OHS/ICE Ofice of Chief Counsel - SNA 8940 Fourinds Drive, 5th Floor San Antonio, T 78239 Name: MIRORIFOVICH KABILOV, MIRK ... A 205-379-500 Date of this notice: 6/3/2014 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Guendelsberger, John Hofman, Sharon Manuel, Elise Sincerely, D/ c t Donna Ca Chief Clerk Trane Userteam: Docket For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t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 U.S. Department of Justice Executive Offce fr Immigration Review Decision of the Board oflmmigration Appeals FaHs Church, Virginia 20530 File: A205 379 500 - San Atonio, TX In re: MIRHOND MIRORIFOVICH KABILOV IN REMOVAL PROCEEDINGS APPEAL Date: ON BEHALF OF RESPONDENT: Smahane Naanaa Naghoum, Esquire ON BEHALF OF DHS: CC Vassar Assistant Chief Counsel APPLICATION: Reopening !Uh ~3 2014 The respondent, a native ad citizen of Uzbekistan, was ordered removed fom the United States in absentia on November 13, 2012, afer not appeaing at a hearing. He fled a motion to reopen on December 20, 2012, and appeals fom the Immigration Judge's March 5, 2013, denial of the motion. The appeal wll be sustained. The Board defrs to the fctual fndings of an Immigration Judge, unless they are clearly eroneous, but it retains independent judgment and discretion, subject to applicable govering standards, regading pure questions of law and the application of a particular standard of law to those fcts. 8 C.F.R. 1003.l(d)(3). The respondent has established that his non-appearance at his hearing was caused by "exceptional circwstances." See section 240(e)(l) of the Immigrations and Nationality Act, 8 U.S.C. 1229a(e)(l); Matter a/ J-P-, 22 I&N Dec. 33 (BIA 1998) (considering the totality of the circumstances in analyzing reopening of an in absentia removal order). In his afdavit, the respondent indicates that his frmer counsel never answered her telephone calls ad did not notif him of his hearing. 1 In addition, the respondent submitted a statement fom Ellada Haj iyeva indicatig that te respondent's frmer attorey ceased working at her prior offce in September 2012, that the respondent appeared at counsel's prior ofce on December 1, 2012, and that several unsuccessfl attempts were then made to reach the respondent's frmer atorey. In light of the fregoing, and the respondent's due diligence in fling his motion to reopen, we fnd tat te respondent's non-appearance at his hearing was caused by an "exceptional circumstace." Hence, we will reopen these proceedings ad remand the record fr a hearing. On May 22, 2012, the Immigration Cou mailed the Notice of Hearing only to the respondent's frmer attorey. I m m i g r a n t
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w w w . i r a c . n e t A205 379 500 Accordingly, te fllowing order will be entered. ORDER: The appeal is sustained, the in absentia order is vacated, and these proceedings are reopened ad remaded fr proceedings consistent with te fregoing opinion. 2 I m m i g r a n t
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w w w . i r a c . n e t DEMETRIAES, TARA ESQ. UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRTION REVIEW IMIGRATION COURT 800 DOLOROSA STREET-SUITE 300 SA ATONIO, TX 78207 1801 SOUTH OEA DRIVE, SUITE J HLLADALE, FL 33009 IN THE MATTER OF FILE A 205-379-500 DATE: Nov 13, 2012 MIRORIFOVICH KILOV, MIRKHOND UABLE TO FORWAD - NO ADRESS PROVIDED ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUGE. THIS DECISION IS FINAL ULESS A APPEAL IS FILED WITH THE BOAD OF IMMIGRTION APPEALS WITHIN 30 CALENDA DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEA. YOUR NOTICE OF APPEAL, ATTACHED DOCUENTS, A FEE OR FEE WAIVR REQUEST MUST BE MAILED TO: BOAD 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 YOU SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE WITH SECTION 2.4 2B ( c) ( 3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S. C. SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6), 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: OTHER: IMIGRTION COUT 800 DOLOROSA STREET-SUITE 300 SA ATONIO, TX 78207 COURT CLERK IMMIGRATION COURT CC: DISTRICT COUNSEL 8940 FOURWINS DR., STH FLOOR SA ATONIO, TX, 782971939 FF I m m i g r a n t
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w w w . i r a c . n e t IN THE MATTER OF UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRTION REVIEW UITED STATES IMIGRTION COURT 800 DOLOROSA STREET-SUITE 300 SA ATONIO, TX 78207 CASE NO. A205-379-500 MIRORIFOVICH KILOV, MIRKHOND RESPONDENT IN REMOVA PROCEEDINGS CHGE(S): Section 212(a) (6) (A) (i) - Present in the U.S. without having been admitted or paroled after inspection. Section 212(a} { Section 237(a} ( ON BEHAF OF RESPONDET: DEMETRIAES, TA ESQ. 1801 SOUTH OCEA DRIVE, SUITE J HALLANDALE, FL 33009 } ( ) ( ) ( ) - } ( ) - ON BEHAF OF THE DEPARTMET OF HOMELA SECURITY: Asst. District Counsel, USDHS P.O. Box 1939 Sa Antonio, TX 78297-1939 MEMORNDUM AD ORDER The above-entitled matter was scheduled for a hearing at 09:00 A.M. on Nov 13, 2012. The Department of Homeland Security appeared by and through its Assistant District Counsel. Respondent was not present and no reasonable cause was provided for respondent's failure to appear. Respondent's cousel of record was present but could offer no reasonable cause for respondent's failure to appear. Page 1 of 2 I m m i g r a n t
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w w w . i r a c . n e t A 205-379-500 The charging document, the Notice to Appear {Exhibit 1), indicates that it was personally sered upon the respondent. A notice of the hearing was __ mailed to respondent. The address to which the notice was mailed is the last known address of record and is an Exhibit. mailed to respondent's counsel of record. _.ersonally sered upon the respondent/respondents counsel at a previous hearing. not given to the respondent because the respondent failed to provide the court with his/her address as required under Section 239(a) ( 1) (F) of the Act after having been advised of that requirement in the Notice to Appear. The hearing notice (and any attachment thereto) is entered into the hearing record as an Exhibit. The Imigration Judge determined to proceed with a hearing in absentia pursuant to Section 240 of the Act. In an in absentia hearing held pursuant to Section 240(b) (5) (A) of the Act the Department of Homeland Security has the burden of proving the alien is removable by evidence which is clear, unequivocal and convincing. To meet its burden of proof the Department of Homeland Security offered: Form I-213 Record of Inadmissible/Deportable Alien. Conviction documents. A Other: /le l4gr AT ' hfVlo VI H1-4 ,t. The Imigration Judge finds that the evidence offered by the Department of Homeland Security relates to the respondent and it is entered into the record as an Exhibit. The respondent, not being present, was unable to meet any applicable burden of proof or to apply for or establish eligibility for any relief to prevent removal from the United States. Ay previously filed relief application is deemed abandoned by respondent's failure to appear. Upon consideration of all the evidence of record, which the Immigration Judge finds to be clear, unequivocal and convincing, the Immigration Judge concludes that the respondent is subject to being removed from the United States for the reason(s) charged in the Notice to Appear. WHEREFORE, IT IS HEREBY ORERED that United States to U I E Jl 17HM Dated: #& V. J Z a d Ir Page 2 of 2 respo:t b?ved from the GLEN P. MCPHAUL Immigration Judge SS r\ Ii 0F SERVICE .. ;1tUMENT WAS SERVED BY: MAIL (M) PERSONAL SERVICE (P) fO: iALIEN [ ] ALIEN c/o Custodial Ofice [ J ALI EN'S AT/REP DATE: O-ly @r.STAFF Attachments: ( J EOIR-33 ( l EOIR-28 l J Legal Services List ( l Other I m m i g r a n t