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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the case for consideration of whether the filing deadline for the respondent’s untimely motion to reopen should be equitably tolled in light of the intervening decision in Avila-Santoya v. U.S. Att'y Gen., 188 F.3d 1273 (11th Cir. 2013) (en banc). The decision was written by Member Elise Manuel and joined by Member John Guendelsberger and Member Neil Miller.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the case for consideration of whether the filing deadline for the respondent’s untimely motion to reopen should be equitably tolled in light of the intervening decision in Avila-Santoya v. U.S. Att'y Gen., 188 F.3d 1273 (11th Cir. 2013) (en banc). The decision was written by Member Elise Manuel and joined by Member John Guendelsberger and Member Neil Miller.
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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the case for consideration of whether the filing deadline for the respondent’s untimely motion to reopen should be equitably tolled in light of the intervening decision in Avila-Santoya v. U.S. Att'y Gen., 188 F.3d 1273 (11th Cir. 2013) (en banc). The decision was written by Member Elise Manuel and joined by Member John Guendelsberger and Member Neil Miller.
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2716 W Waters Ave Tampa, FL 33614 Name: REECE, LENNOX SELWYN U.S. Department of Justice Executive Ofce fr Immigation Review Board of Immigration Appeals Ofce of the Clerk 5107 Leeburg Pk, Suite 1000 Fals Church, Vrinia 21041 OHS/ICE Ofice of Chief Counsel MIA 333 South Miami Ave., Suite 200 Miami, FL 33130 A 034-707-338 Date of this notice: 9/11/2013 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Manuel, Elise Guendelsberger, John Miller, Neil P. Sincerely, DO ct Donna Carr Chief Clerk lucasd Userteam: Docket 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 n e t Cite as: Lennox S. Reece, A034 707 338 (BIA Sept. 11, 2013) For more unpublished BIA decisions, visit www.irac.net/unpublished U.S. Deparment of Justice Executive Ofce fr Imigation Review Decision of the Boad of Imigation Appeals Falls Chh. Virginia 2201 File: A034 707 338 - Miami, FL In re: LENOX S REECE I RMOVAL PROCEEDINGS APPEAL Date: ON BEHALF OF RSPONDENT: Samson Koyonda, Esquire APPLICATION: Reopening SEP 11 2013 The respondent has appealed the Immigation Judge's decision dated July 17, 2012, denying his motion to reopen. The Immigation Judge had previously ordered the respondent removed in absentia fr his failure to appear at the hearing on May 19, 2011. We review an Immigation Judge's fndings of fct fr clea eror, but questions of law, discretion, ad judgent, ad all other issues in appeals, are reviewed de novo. 8 C.F.R. 1003. l (d)(3)(i), (ii). The record will be remanded to the Immigation Judge. In his motion to reopen, te respondent asserts that he failed to appea at his removal hearing due to exceptional circumstances. Although the respondent's motion is untimely, he contends that the fling deadline should be equitably tolled because he wa prejudiced by the inefective assistance of his frer counsel. The Immigation Judge denied the respondent's motion on the basis that equitable tolling is not peritted pursuant to controlling precedent of the United States Court of Appeals fr the Eleventh Circuit (l.J. at 2). However, subsequent to the Immigation Judge's decision, the Eleventh Circuit held that the 90-day fling deadline fr a motion to reopen is subject to equitable tolling. Avila-Santoya v. U.S. Att' Gen., 188 F.3d 1273 (I 1th Cir. 2013) (abrogating Anin v. Reno, 188 F.3d 1273 (11th Cir. 2009)). In ligt of this interening precedent, we fnd it appropriate to remand the record to the Immigation Judge fr fher consideration of the respondent's claims regading exceptional circustaces ad inefective assistance of counsel, ad the enty of a new decision. See 8 C.F.R. 1003.l(d)(3)(iv) (limiting the Board's fct-fnding ability on appeal). Accordingly, the fllowing order will be entered. ORER: The record is remanded to the Immigration Court fr frher consideration of the respondent's motion to reopen. FOR THE 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: Lennox S. Reece, A034 707 338 (BIA Sept. 11, 2013) t f UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT MIAMI, FLORIDA IN THE MATTER OF: REECE, Lennox Selwn A# 034-707-338 RESPONDENT ON BEHALF OF RESPONDENT Samson Koyonda, Esq. Tampa Immigration Law Center 1824 West Waters Ave. Tampa, Florida 33604 ) ) ) ) ) ) IN REMOVAL PROCEEDINGS ON BEHALF OF DHS Olga Villa Assistant Chief Counsel Department of Homeland Security 333 South Miami A venue, Suite 200 Miami, Florida 33130 DECISION OF THE IMMIGRATION COURT I. Background The respondent is a male, native, and citizen of Guyana. On February 8, 2011, the Department of Homeland Security (DHS) issued a Notice to Appear (NT A) that charged the respondent with removability pursuant to section 2 l 2(a)(2)(A)(i)(II) of the Immigration and Nationality Act (Act). This NT A was personally served on the respondent and scheduled him to appear fr a March 24, 2011 master calendar hearing at the Miami, Florida Immigration Cour. (Exh. 1.) The respondent appeared at the March 24, 2011 master calendar hearing accompanied by his attorey of record, Kimberly S. Daise. The Immigration Court then rescheduled the respondent fr a May 19, 2011 master calendar hearing. A written notice of the May 19, 2011 master calendar hearing was personally sered on Kimberly S. Daise. The Immigration Court also orally announced the scheduling of the May 19, 2011 hearing on the record. On May 19, 2011, the Immigration Court conducted the afrementioned master calendar hearing. Although Kimberly S. Daise was present at this hearing, the respondent filed to appear. Kimberly S. Daise indicated that she was unaware why the respondent was not present at his scheduled hearing. Accordingly, the Immigration Court sustained the charge of removability and ordered the respondent removed in absentia to Guyana On July 5, 2012, the respondent, through new counsel Samson Koyonda, fled a motion to reopen. Therein, the respondent argues that his removal proceeding should be reopened because he filed to appear fr the May 19, 2011 hearing on account of health I m m i g r a n t
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w w w . i r a c . n e t , @ W . ' REECE, Lennox Selwn A034-707-338 problems. The respondent also contends that Kimberly S. Daise provided defctive legal representation by not assisting him with the timely fling of a motion to reopen. II. Discussion The respondent's motion to reopen will be denied. Because the respondent concedes he received proper notice of the May 19, 2011 hearing, his removal proceeding qualifes fr reopening "only upon a motion to reopen fled within 180 days afer the date of the order of removal, if te alien demonstrates that te filue to appear was because of exceptional circumstances as defned in section 240(e)(l) of the Act." 8 C.F.R. 1003.23(b)(4)(ii). In this regard, the respondent asserts he is entitled to reopening under this provision because of health problems and also because his prior attorey provided him inefective legal representation. While health issues and inefective assistance of counsel may establish exceptional circumstances, see Matter of J-P-, 22 I&N Dec. 33 (BIA 1998); Matter of Rivera-Claros, 21 I&N Dec. 599, 602 (BIA 1996), because the respondent's motion to reopen was fled more than 180 days afer issuance of the in absentia order of removal, a claim that exceptional circumstances caused his filure to appear at the May 19, 2011 hearing is time barred, Matter of Lei, 22 I&N Dec. 113, 116 (BIA 1998) ("[G]iven that the statute is explicit in its requirement that a motion to reopen based on exceptional circumstances must be fled within 180 days of the in absentia order, .. . we conclude that a claim of inefective assistance of counsel is not an exception to the 180-day time limit .. .. "), cited in Matter of A-A-, 22 I&N Dec. 140, 144 (BIA 1998) (same). Contrary to the respondent's contentions, the 180-day fling requirement is "jurisdictional and mandatory" and not subject to equitable tolling. See Anin v. Reno, 188 F.3d 1273, 1278-79 (11th Cir. 1999) (stating that 180-day statutory time limit on motions to reopen in connection with in absentia orders is "jurisdictional and mandatory"); see also Abdi v. US. Att ' Gen., 430 F.3d 1148, 1150 (11th Cir. 2005) (per curiam) (reafring Anin and stating that the deadline fr motions to reopen is "mandatory and jurisdictional, and, therefre it is not subject to equitable tolling"). Finally, although the respondent has suggested he is eligible to pursue cancellation of removal fr certain nonpermanent residents, by filing to appear fr his May 19, 2011 master calendar hearing, he frfited the right to apply fr any relief fom removal he may have been eligible to pursue. See Matter of W-F-, 21 l&N Dec. 503, 507 n.5 (BIA 1996) (holding that inherent in any in absentia removal order "is a fnding that any applications fr relief have been abandoned fr filure to prosecute"). Accordingly, the fllowing order shall be entered: IT IS HEREBY ORDERED that the respondent's motion to reopen be DENIED. 2 *\|| I m m i g r a n t
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w w w . i r a c . n e t RECE, Lennox Selwn A034-707-338
DATED this _ day of July, 2012.
Immigration Judge cc: Samson Koyonda, Esq. Olga Villa, Assistant Chief Counsel, DHS 3 I m m i g r a n t