..

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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OHS/ICE Office of Chief Counsel - NYC
26 Federal Plaza, 11th Floor
New York, NY 10278

Name: AWUKU, MIRIAM A 206-266-819

Date of this notice: 9/20/2017

Enclosed is a copy of the Board's decision in the above-referenced case. If the attached
decision orders that you be removed from the United States or affirms an Immigration Judge's
decision ordering that you be removed, any petition for review of the attached decision must
be filed with and received by the appropriate court of appeals within 30 days of the date of
this decision.

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Kelly, Edward F.
Grant, Edward R.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Miriam Awuku, A206 266 819 (BIA Sept. 20, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A206 266 819 - New York, NY Date:

SEP 2 0 2017
In re: MIRIAM AWUKU

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

APPLICATION: Reopening

The respondent, a native and citizen of Ghana, was ordered removed in absentia on
October 27, 2016. On January 23, 2017, the respondent filed a motion to reopen proceedings,
which the Immigration Judge denied on March 1, 2017. The respondent filed a timely appeal of
that decision. The appeal will be sustained, proceedings will be reopened, and the record will be
remanded.

The Board reviews an Immigration Judge's findings of fact, including fmdings as to the
credibility of testimony, under the clearly erroneous standard. 8 C.F.R. 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions of Immigration Judges de novo. 8 C.F.R. 1003.l (d)(3)(ii).

Upon de novo review of the record and in light of the totality of circumstances presented in
this case, we conclude that the respondent demonstrated that reopening is warranted. 1 See sections
240(b)(5)(C)(i), (e)(l) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(C)(i),
(e)(l). We will therefore sustain the respondent's appeal and remand the record for further
proceedings.

ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings
are reopened and the record is remanded to the Immigration Judge for further proceedings and for
the entry of a new decision.

1 Among other factors, we have considered the respondent's and her attorney's statements which
indicate that her nonattendance at her hearing was an innocent mistake and not an attempt to avoid
her hearing, the fact that she and counsel appeared at the Court on the correct date, albeit at the
incorrect time, as well as the absence of opposition to the motion and appeal by the Department of
Homeland Security.

Cite as: Miriam Awuku, A206 266 819 (BIA Sept. 20, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
26 FEDERAL PLZ, 12TH FL RM1237
NEW YORK, NY 10278

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Law Office of Blaise Odhiarnbo
ODHIAMBO, BLAISE OMONDI
30 WALL ST, 8TH FL
NEW YORK, NY 10005

IN THE MATTER OF FILE A 206-266-819 DATE: Mar 1, 2017

AWUKU, MIRIAM

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(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:

IMMIGRATION COURT
26 FEDERAL PLZ, 12TH FL RM1237
NEW YORK, NY 10278

OTHER:

COURT CLERK
IMMIGRATION COURT FF
CC: DISTRICT COUNSEL, NYC DISTRICT
26 FEDERAL PLAZA, ROOM #1130
NEW YORK, NY, 10278
U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
26 Federal Plaza, Room 1237, New Yorlc, New York 10278

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In the Matter of
Miriam AWUKU File No. A 206-266-819
Respondent

In behalf of Respondent: In behalf of Dept. of Homeland Security:

Blaise Odhiambo, Esq. Litigation Section, I.C.E.
30 Wall Street, 8"' Floor 26 Federal Plaza, Room 1130
New York, N.Y. 10005 New York, N.Y. 10278

ORDER DENYING RESPONDENT'S MOTION TO REOPEN

Respondent has submitted a Motion to Reopen the proceeding and to set aside the Order
issued on October 27, 2016.1 The court has considered the motion, the prior record as a
whole, and any reply or opposition from D.H.S. The court concludes that respondent has
not established that the prceeding should be reopened. Accordingly, for the reason(s) set
out in the Decision below it is hereby

ORDERED, that the Motion to Reopen be and it is hereby DENIED.

ORDE ED, that no stay of removal is granted by this court.

Dated: 3-{-f7. AaM--

Immigration Judge

DECISION OF THE IMMIGRATION JUDGE

EXPLAINING REASONS FOR DENIAL OF THE MOTION TO REOPEN.

The Court's Order denying the Motion to Reopen is based on the reasons noted below.
Other reasons which might exist, or which may be apparent from the record as a whole, are
not relied upon by the court in this decision. However, reasons for denial not specifically
cited by the court are not an indication that the court affirmatively finds that such reasons for
denial do not or could not exist.

Applicable regulations.

Generally, only one motion to reopen may be filed before the Immigration Court and
such motion must be filed within 90 days of the final administrative order of removal,

1 The order of removal was issued by the Hon. Phillip Morace, who regrettably passed away in January.
Accordingly the motion has been assigned to this judge.
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deportation, or exclusion. 8 C.F.R. 1003.23(b)(1). The motion must state new facts that
will be proven at a hearing if the motion is granted, and it must be supported by affidavits and
other evidentiary material 8 C.F.R. 1003.23(b)(3). This motion was filed shortly _before
the 90 day deadUne would have expired, and it also appears that a longer deadUne would have
applied in this case.

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A motion to reopen will not be granted unless the Immigration Judge is satisfied that
the evidence offered is material and was not available and could not have been discovered or
presented at the former hearing. Id.

For untimely motions to reopen, the 90-day filing period may be equitably tolled to
accommodate claims of ineffective assistance of counsel Iavorski y. U.S. INS, 232 F.3d 124,
134 (2d Cir. 2000). For an untimely claim to receive the benefit of equitable toJling, however,
an alien must demonstrate not only that his constitutional right to due process was violated
by the conduct of counsel, but that he also exercised due diligence in pursuing the case
during the period he seeks to toll. Id. at 135. Wang v. BIA, No. 06-5554-ag (2d Cir.
11-29-07). This exception does not apply as the motion does not claim ineffective assistance
occurred.

An order entered in absentia in removal proceedings may be rescinded only (i) upon a
motion to reopen filed within 180 days after the date of the order of removal if the alien
demonstrates that his failure to appear was because of exceptional circumstances or (ii) upon
a motion to reopen filed at any time if he demonstrates that he did not receive due notice or
that he was in federal or state custody and his failure to appear was through no fault of his
own. 8 C.F.R. 1003.23(b)(4)(ii). The failure to appear because of "exceptional
circumstances" refers to circumstances such as serious illness or death of an immediate
relative, but not including less compelling circumstances. INA 240(e)(1). The court
believes that this basis to reopen is the sole basis relied upon by respondent, and finds that
the asserted basis has not been shown to justify reopening, for the reasons set out below.

Basis for the motion to reopen.

Respondent contends that she was confused as to the time for her hearing, because she had
previously had her case scheduled at 2:00 p.m. in September 2015, and when the case was
rescheduled to October 27, 2016 at 9:30 a.m., she was notified by phone from her attorney's
office, but she "heard it as 2:30 p.m." She says that when the hearing approached, her
attorney had to travel out of state, so assigned another attorney, Mr Nytaino, to represent her
at that hearing. Respondent then informed Nytaino that the hearing was scheduled at 2:30
p.m., and "this mistake of time confused him." Respondent states that her "previous
appointments were in the afternoon." She says she and Nytaino appeared at court at 2:00
p.m. but found the court was not in session. They inquired at the court office and were told
the hearing had been in the morning.

2
Discussion.

The court finds respondent's explanation is not convincing and fails to show that the failure
to appear was due to an exceptional circumstance. First, it should be noted that the October
27, 2016 hearing was a master calendar setting. Respondent was due in court by 9:30 a.m.,
but the docket would have included many other cases set for short hearings. The court was

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in session for at least two hours; when he went on the record in respondent's case to conduct
the hearing in absentia, the judge announced that the time was 11:45 a.m. Although
respondent claims that she actually appeared at the court in the morning and waited for
Nytaino to appear, she obviously never checked in with the clerk in the courtroom or
inspected the court docket posted at the doorway to the courtroom and in other locations
around the 14th floor. If she had done so, she would have seen that her case was set at 9:30
a.m.

Second, the history of the case settings is not as simple as respondent suggests.
Respondent's first hearing in New York was at 8:30 a.m. on June 26, 2014. Her second
hearing was at 2:30 p.m. on September 14, 2015; that was to be a full ("individual") hearing,
but respondent did not attend court that day because her attorney filed a motion for
continuance supported by a letter from a doctor; the motion was granted. Respondent's
next hearing was set for March 28, 2016 at 10:30 a.m. The case was rescheduled because
Judge Morace was ill, but it appears respondent would have appeared, because the next
hearing date was served by mail in April. Since the docket was canceled on short notice,
respondent should at least have remembered that she was set for a morning hearing. The
notice for the final hearing was mailed to respondent's counsel of record, pursuant to the
court's regulations. 8 CFR 1292.5. Respondent's suggestion that she was misled as to the
hearing time because her "previous appointments were in the afternoon" is not accurate.

In short, it appears that respondent's failure to appear (taking her statement at face
value that she did not try to report to the courtroom until 2:00 p.m.) was due to ordinary
negligence, which does not arise to the level of exceptional circumstances and through no
fault of her own. 8 C.F.R. 1003.23(b)(4)(ii). It must be noted that according to
respondent's account, she is the person who misinformed the substitute attorney about the
time of the hearing. The court also feels that an affidavit from attorney Nytaino should have
been submitted, since he would be a direct witness as to why respondent supposedly went to
court hours late. The motion written by lead attorney Odhiambo is essentially all based on
hearsay as to what occurred and why, on the day of the hearing.

The court further notes that respondent has not shown reasonable diligence in
pursuing her claim for asylum. Respondent was requested to file any supporting evidence
for her relief claim, such as documents to corroborate the factual basis of her claim, at least
two weeks before her previously scheduled full hearing on the merits, which was to take place
in September 2015. When such deadline is not complied with, the immigration judge is
authorized to find that the applicant has lost the right to file such evidence. That hearing
was rescheduled at the last moment, based on a recent medical problem for respondent, after
all the supporting evidence should have been filed. She has never filed any supporting

3
evidence of any kind although she has been seeking asylum in the U.S. for over two and
one-half years. Respondent's failure to diligently lay the evidentiary basis for her asylum
claim raises the issue as to whether she genuinely was confused about the time of her
hearing, or simply failed to appear and then, three months later, filed her motion to reopen.

The court has issued its Order, above, denying the Motion for the reasons stated.

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Dated: "3-f-(7 .
n Vomacka, Immigration Judge