U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike. Suile 2000
Falls Church. Virginia 20530

Name: KEITA, ALKALY

A 098-071-179
Date of this notice: 7/ 16/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

[)orutL

WlAJ

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Alkaly Keita, A098 071 179 (BIA July 16, 2015)

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OHS/ICE Office of Chief Counsel - MEM

80 Monroe Ave., Ste 502
Memphis, TN 38102

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A098 071 179 - Memphis, 1N

Date:

'JUL 162015

In re: ALKALYKEITA

APPEAL
ON BEHALF OF RESPONDENT: Pro se 1
ON BEHALF OF DHS:

William A. Lund
Assistant Chief Counsel

APPLICATION: Reopening
The respondent appeals from the Immigration Judge's March 5, 2014, decision denying his
motion to reopen. The respondent was ordered removed in absentia on January 16, 2014. The
appeal will be sustained, the proceedings reopened, and the record remanded.
We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R.
1003.l(d)(3)(i), (ii).
The respondent's counsel stated in the motion to reopen proceedings that she mistakenly
entered the scheduled January 16, 2014, hearing date on her calendar as June 16, 2014, and
therefore was not prompted to remind the respondent of the hearing, causing his failure to
appear. As reflected in the motion and record, the respondent had diligently attended all
previous hearings and appointments, and was awaiting action on a pending immediate relative
petition filed on his behalf by his United States citizen spouse. The Immigration Judge denied
the motion, finding that the respondent did not comply with the procedural requirements of the
Board's decision in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), affd Lozada v. INS,
857 F.2d 10 (1st Cir. 1988), to establish ineffective assistance of counsel, or show that other
exceptional circumstances caused his failure to appear.
We find this to be a close case. We observe that it should be routine practice for an attorney
to remind her client of an upcoming court date, whether or not that client may have received
independent notice of the scheduled proceeding. We find former counsel's mistaken calendaring
of the respondent's hearing date and the consequent failure of counsel to remind the respondent
of the hearing is sufficiently analogous to the rendering of incorrect legal advice to constitute
1

The appeal was filed by attorney. However, the attorney moved to withdraw from
representation during the pendency of the appeal. The respondent has expressed no opposition to
the motion. Therefore, the motion is granted. We will nevertheless consider the brief filed by
former coW1Sel in the absence of any arguments advanced by the respondent as a pro se appellant.
Cite as: Alkaly Keita, A098 071 179 (BIA July 16, 2015)

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IN REMOVAL PROCEEDINGS

A098 071 179

Based on the totality of the circumstances, we conclude that the respondent has established
that exceptional circumstances prevented his appearance. See Denko v. INS, 351 F.3d 717,
723 (6th Cir. 2003); Matter ofJ-P-, 22 I&N Dec. 33 (BIA 1998) (holding that the Board applies a
totality of the circumstances test for determining whether "exceptional circumstances" prevented
an alien's appearance at a hearing). Therefore, we rescind the in absentia order and reinstate
proceedings. Accordingly, the following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The proceedings are reinstated.
FURTHER ORDER: The record is remanded for further proceedings.

2
Cite as: Alkaly Keita, A098 071 179 (BIA July 16, 2015)

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ineffective assistance in the particular circumstances presented here. See Matter of Grijalva
Barrera, 21 l&N Dec. 472 (BIA 1996) (erroneous instruction from employee of counsel not to
appear at an immigration hearing constituted ineffective assistance and an "exceptional
circumstance" excusing failure to appear). Moreover, counsel's own failure to attend the
proceeding might constitute ineffective assistance in itself. Given prior counsel's admission of
error resulting in the respondent's failure to appear, strict compliance with the procedural
requirements outlined in Lozada is unnecessary in this case. We have held that an alien claiming
ineffective assistance of counsel is not required to show prejudice to rescind an in absentia
deportation order based on exceptional circumstances. See Matter of Rivera-Claros, 21 I&N
Dec. 599, 603 n. 1 (BIA 1996); Matter o/Grijalva-Barrera, supra at 473 n. 2.

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f-\

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MEMPIDS, TENNESSEE

KEITA, Alkaly
A098-071-179
RESPONDENT

APPLICATION:

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)
)
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)

March.,2014

Motion to Reopen in Absentia

ON BEHALF OF RESPONDENT
Nimmo Bhagat
1585 Massey Pointe Lane
Memphis, TN 38120

ON BEHALF OF DHS
William Lund
167 N. Main Street, Room 737A
Memphis, TN 38103

DECISION ON MOTION BY THE IMMIGRATION JUDGE

I.

PROCEDURAL HISTORY

Alkaly Keita (Respondent), a native and citizen of Guinea, was admitted to the
United States at New York, New York on or about January 23, 1990 as a nonimmigrant
G-5 employee with authorization to remain in the United States for a temporary period
not to exceed three years. On December 22, 2010, the Department of Homeland Security
(DHS) mailed Respondent a Notice to Appear (NTA) charging him as being removable
under INA 237(a)(l)(b) (as having been admitted as a nonimmigrant under
101(a)(l5), but remaining in the United States for a time longer than permitted). The
NTA ordered Respondent to appear before the Memphis Immigration Court on a date and
time to be set. Respondent first received a Notice of Hearing notifying him of the July 28,
2011 Master Calendar Hearing, but after a series of postponed Master Calendar Hearings,
Respondent's case was set for a Master Calendar Hearing on February 21, 2013.
Respondent appeared for the February 21, 2013 hearing and the matter was continued
until January 16, 2014 due to a pending I-130 Petition, submitted by his new United
States Citizen spouse. Respondent failed to appear for the January 16, 2014 hearing and
this Court ordered him removed in absentia.

Cite as: Alkaly Keita, A098 071 179 (BIA July 16, 2015)

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IN THE MATTER OF:

--?-'

On January 21, 2014, Respondent filed a Motion to Reopen, asserting that

Respondent's absence was due to his counsel's calendaring error. On January 23, 2014,
OHS filed a Response in Opposition to the Respondent's Motion to Reopen.
ANALYSIS

According to the INA, as well as federal regulations, an order of removal entered

in absentia pursuant to INA 240(b )(5)(A) may be rescinded upon a motion to reopen
filed in one of the following ways: (i) within 180 days after the date of the order of
removal if the alien shows that the failure to appear was due to exceptional
circumstances, or (ii) at any time if the alien demonstrates that he or she did not receive
notice in accordance with INA 239(a)(l) or (a)(2). INA 240(b)(S)(C); 8 C.F.R.
1003.23(b)(4)(ii) (2011). Further, any motion to reopen in order to proceed with an
application for relief must be accompanied by the appropriate application for relief and
all supporting documents. 8 C.F.R. 1003.23(b)(3) (2013) (emphasis added). The filing
of such a motion shall stay the removal of the alien pending disposition of the motion by
the Immigration Judge. INA 240(b)(S)(C); 8 C.F.R.1003.23(b)(4)(ii). An alien may
file only one such motion to reopen. 8 C.F.R.1003.23(b)(4)(ii).
In this case, Respondent's Motion fails on multiple grounds. First, the Motion
completely lacks any supporting documentation establishing proof of the Respondent's
claim. The only relevant document provided is the motion itself, which alleges that
Respondent's counsel made a calendaring error and failed to remind the Repsondent of
the hearing date, but motions, as statements of counsel, are not given any evidentiary
weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez
Sanchez, 17 l&N Dec. 503 (BIA 1980). Thus, because Respondent has failed to provide
an affidavit or any other evidence in support of his claim, his motion fails. Second, even
if Respondent had provided something of evidentiary value, his motion fails on its merits.
Counsel's "poor calendaring" and failure to remind Respondent of the hearing date does
not rise to the level of an exceptional circumstance warranting a reopening of
Respondent's case. See Uriostegui v. Gonzales, 415 F.3d 660, 663 (7th Cir. 2005);
Dominguez-Capistran v. Gonzales, 438 F.3d 876, 877-78 (8th Cir. 2006). While these
cases are not binding on the Court, the Court finds them to be persuasive as the Sixth
Circuit has approvingly acknowledged Dominguez-Capistran v. Gonzales and Uriostegui
v. Gonzales in Acquaah v. Holder, 589 F.3d 332, 335 (6th Cir. 2009). Furthermore,
Respondent was independently informed of the January 16, 2016 hearing date. He was
orally informed of the date and was personally served with a Notice of Hearing. Finally,
while Respondent does not outright make such a claim, his motion could be read as
asserting an ineffective assistance of counsel argument. However, this relief also
automatically fails because Respondent did not provide evidence of compliance with the
requirements of Matter ofLozada, which states, to lodge such a claim,:
(1) the motion be supported by an affidavit of the allegedly aggrieved
respondent setting forth in detail the agreement that was entered into
with counsel with respect to the actions to be taken and what

Cite as: Alkaly Keita, A0982071 179 (BIA July 16, 2015)

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III.

_ Matter ofLozada, 19 l&N Dec. 637 (BIA 1988). However, Respondent has not complied
with any of the three requirements and, therefore, his Motion also fails on this ground.
\
In light of the preceding grounds, the Court will deny Respondent's Motion to
Reopen.
III. ORDER
For the foregoing reasons, the following ORDER is HEREBY ENTERED:
It is HEREBY ORDERED that Respondent's Motion to Reopen be DENIED.

DATED this ay of March, 2014.

Hon rable Rebecca L. Holt

Immigration Judge

""'
:. ,,:',

Cite as: Alkaly Keita, A0983071 179 (BIA July 16, 2015)

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representations counsel did or did not make to the respondent in this

regard,
(2) counsel whose integrity or competence is being impugned be informed
of the allegations leveled against him and be given an opportunity to
respond, and
(3) the motion reflect whether a complaint has been filed with appropriate
disciplinary authorities with respect to any violation of counsel's
ethical or legal responsibilities, and if not, why not.