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Lennox S. Reece, A034 707 338 (BIA Sept. 11, 2013)

Lennox S. Reece, A034 707 338 (BIA Sept. 11, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the case for consideration of whether the filing deadline for the respondent’s untimely motion to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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the case for consideration of whether the filing deadline for the respondent’s untimely motion to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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Koyonda, Samson., Esq.

Tampa Immigration Law Center
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
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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For more unpublished BIA decisions, visit www.irac.net/unpublished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 Ch�h. 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
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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
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¸¸,¸ @¸
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
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RECE, Lennox Selwn A034-707-338
ª
DATED this _ day of July, 2012.
Immigration Judge
cc:
Samson Koyonda, Esq.
Olga Villa, Assistant Chief Counsel, DHS
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