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Felix Musembi Kyalo, A200 578 009 (BIA Sept. 6, 2013)

Felix Musembi Kyalo, A200 578 009 (BIA Sept. 6, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia because the record did contain contain an entry of appearance (Form EOIR-28) for the attorney to whom the hearing notice was sent. The decision was written by Member Elise Manuel and joined by Vice Chairman Charles Adkins-Blanch and Member Sharon Hoffman.
In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia because the record did contain contain an entry of appearance (Form EOIR-28) for the attorney to whom the hearing notice was sent. The decision was written by Member Elise Manuel and joined by Vice Chairman Charles Adkins-Blanch and Member Sharon Hoffman.

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Published by: Immigrant & Refugee Appellate Center, LLC on Sep 10, 2013
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10/12/2013

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Matemu, Japheth N., Esq.

Matemu Law Ofice
5540 Centeriew Dr., Suite 200
Raleigh, NC 27606
Name: KYALO, FELIX MUSEMBI
U.S. Ù0gBtlm00l 0ÎJu5lÎ00
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 lesburg Pike, Suite 2000
Fals Church, Virginia 22041
OHS/ICE Ofice of Chief Counsel - CHL
5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212
A 200-578-009
Date of this notice: 916/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
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Sincerely,
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Donna Carr
Chief Clerk
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Cite as: Felix Musembi Kyalo, A200 578 009 (BIA Sept. 6, 2013)
For more unpublished BIA decisions, visit www.irac.net/unpublished
U.S. Ü6g8FÍm6BÍ of J05ÍÌ66
Executive Ofce RrImmigation Review
Decision of the Boad of Immigation Appeals
· Falls c
'
hurch, Virginia 22û41
File: A200 578 009 - Charlotte, NC
In re: FELIX MUSEMBI KY ALO
Û REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Japheth N. Matemu, Esquire
ON BEHALF OF OHS: Scott D. Criss
Assistant Chief Counsel
APPLICATION: Reopening
SEP 0 6 Z013
The respondent, a native ad citizen of Kenya, has appealed the Immigation Judge's
decision of December 5, 2012. In that decision, the Immigration Judge denied the respondent's
motion to reopen removal proceedings in which he was ordered removed in absentia on
November 8, 2012. The Department of Homeland Security (DHS) has fled a opposition to the
appeal. The appeal will be sustained.
The record indicates that notice of the respondent's hearing was mailed to counsel,
Japheth N. Matemu, Esquire. Normally, notice to counsel constitutes notce to the respondent.
See section 240(b)(5)(A) of the Immigtion ad Nationality Act, 8 U.S.C. § 1229a(b)(5)(A);
8 C.F.R. § 1003.26(c)(2); see also Mater of Barocio, 19 I&N Dec. 255 (BIA 1985) (holding
that notice to an alien's counsel constitutes notice to the alien); 8 C.F.R. § 292.S(a). Here
however, the record does not contain a Notice of Entry of Appeaace as Attorey or
Representative Befre the Immigtion Cour (For EOIR-28) fom Mr. Matemu or ay other
counsel. See 8 C.F.R. § 1292.4(a). Nor is there any independent evidence in the record that this
counsel notifed the respondent of the hearing. We therefre conclude that the respondent was
not properly notifed of the time, date, and place of the removal hearing wherein he was ordered
removed in absentia in accordance with section 239(a)(2)(A) of the Act, 8 U.S.C.
§ 1229(a)(2)(A). Accordingly, the fllowing orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The order of removal is rescinded, and the record is remaded to
the Immigtion Judge fr frther proceedings consistent with the fregoing opinion and fr the
entr of a new decision.
FOR ¯L BOARD
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Cite as: Felix Musembi Kyalo, A200 578 009 (BIA Sept. 6, 2013)
.. .

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.
-· �
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
U.S. IMMIGRATION COURT
5701 Executive Center Drive, Suite 400
Charlotte, North Carolina 28212
IN THE MATTER OF: Kyalo, Felix Musembi
CASE #. 200-578-009
ALIEN ATTORNEY: Japheth Matemu., Esq
DECISION ON A MOTION.
Û
[ ]-DEPORTATION [ ] EXCLUSION [ X ) REMOVAL PROCEEDINGS [ J AOC ASYLU
ONLY
A MOTION TO ROPEN has been fled in te above captioned case. The
Motion has been duly considered and it appears to the Court that:
[ ] The resuest is timely and reasonable. Therefre, IT IS HEREBY ORDERED that the
Motio� NED.
.
[/The Motion has been duly considered and it appears to the Court that no substantial grounds
have been advanced to war ant its grant. Therefre, IT IS HEREBY ORDERED that the Motion
be and the same is hereby DENIED. � ..
A
_
R
(I' J:.
[
] Adjou to individual lmaster calenda hearing on at am/pm.
This document was served to:
[ X ] District Counsel
[ X ] Counsel fr Respondent I Applicant
[ X J Respondent I Applicant
Mailed out: / -j--/ � By: P,�
Dated thi¿r�y of __. ,7Ü17
Hon. BARY J. PET
U.S. Immigration Judge
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Respondent's motion to reopen is denied for the reasons set forth in DHS's
opposition. On July 9, 2012, the Court granted respondent's motion fr a
continuance and rescheduled the matter to November 8, 2012. The Court's
decision on the motion and respondent's hearing notice for November 8, 2012,
was served on respondent's counsel of record. Service on a respondent's atorey
of record constitutes proper service. 8 C.F.R. § 1292.S(a)(providing that whenever
a represented person is required to be given notice, such notice shall be given to
the attorney or representative of record, or to the person himself if unrepresented);
Matter of Barocio, 19 I&N Dec. 255, 258 (BIA 1985) ("[N]otice to [the
respondents'] attorey constitutes notice of the decision to the respondents").
Therefore, respondent received "written notice" for purposes of INA§§ 240(b)(5),
239(a)(2); see also 8 C.F.R. § 1003.23(b)(4)(ii).
In respondent's motion to reopen counsel contends he never received the
November 8, 2012 hearing notice. Counsel frther states that he leared that the
Cour granted the motion to continue by calling the Cour. The standard practice
in the Charlotte Immigration Court in such circumstances is to advise the attorey
that the motion fr a continuance has been granted and advise of the new hearing
date. Thus, counsel would have been advised of the November 8, 2012
rescheduled hearing when he checked the status of his motion. Even if counsel
had not been infrmed of the new date he was on notice that the matter was
rescheduled and was under an obligation to determine the new hearing date by
again calling the Court or calling the EOIR hotline. Counsel did neither
notwithstanding that he was on notice since at least July 11, 2012 (the continued
master calendar date) that the matter had been rescheduled. Counsel took no
action between July 11, 2012, and November 8, 2012 (the date the in absentia
order was entered) to ascertain the new hearing date. As such, counsel is wholly
responsible fr any lack of notice regarding the November 8, 2012 hearing date.
To the extent respondent's motion reopen is based upon inefective assistance of
counsel, he is required to comply with the procedural requirements fr proving
attorey negligence set frh in Matter of Lozada, 19 I&N Dec. 63 7 (BIA 1988).
Respondent has filed to do so.
Respondent's motion to reopen is therefre DENIED.
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