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David Kirwa Kurgat, A089 003 420 (BIA Apr. 25, 2014)

David Kirwa Kurgat, A089 003 420 (BIA Apr. 25, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent’s application for adjustment of status. The Board concluded the respondent established a prima facie case of ineffective assistance of counsel based on allegations that his prior attorney failed to prepare and submit an Affidavit of Support (Form I-864) in connection with adjustment application. The decision was written by Member Linda Wendtland.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent’s application for adjustment of status. The Board concluded the respondent established a prima facie case of ineffective assistance of counsel based on allegations that his prior attorney failed to prepare and submit an Affidavit of Support (Form I-864) in connection with adjustment application. The decision was written by Member Linda Wendtland.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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McKinney, Christopher B., Esq.

900 Westport Road, 2nd Floor
1015 N. Lake Avenue, Suite 209
Kansas City, MO 64111
Name: KURGAT, DAVID KIRWA
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Chief Clerk
5107 Leesburg Pike, Suite 2000
Fals Church. Virginia 20530
OHS/ICE Office of Chief Counsel - KAN
2345 Grand Blvd., Suite 500
Kansas City, MO 64108
A 089-003-420
Date of this Notice: 4/25/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Wendtland, Linda S.
Sincerely,
Donna Carr
Chief Clerk
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: David Kirwa Kurgat, A089 003 420 (BIA Apr. 25, 2014)
U.S. Department.of Justice
Executive Ofce fr Immigation Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 20530
File: A089 003 420 - Kasas City, MO
In re: DAVID KIRWA KURGAT
I REMOVAL PROCEEDINGS
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Christopher B. McKinney, Esquire
ON BEHALF OF OHS:
CHARGE:
Justin Howad
Assistant Chief Counsel
Date:
Notice: Sec. 237(a)(l)(C)(i), I&N Act [8 U.S.C. § 1227(a)(l)(C)(i)
] -
Nonimigrat - violated conditions of status
APPLICATION: Adjustment of status; continuace; voluntay depaure
APR 25 2014
The respondent appeals the Immigration Judge's March 28, 2012, decision denying the
respondent's request fr a continuace, pretermitting his application fr adjustment of status
uder section 245(a) of the I igration and Nationaity Act, 8 U.S.C. § 1255(a), ad denying
his application fr voluntay departre. During te pendency of his appeal, the respondent fled
a motion to remad based on a claim of inefective assistance of counsel. The motion will be
grated, and te record will be remanded to the Immigration Judge fr frther proceedings
consistent with tis opinion ad fr entry of a new decision.
Through his motion, the respondent contends that he should be permited to apply fr
adjustment of stats uder section 245(a) of the Act because his application was preterited by
the Immigration Judge due to inefective assistance of cousel. See Respondent's Motion at 5-9.
According to te respondent, his prior cousel filed to complete ad submit a For 1-864
Afdavit of Support despite the fct that he had provided prior counsel with his entire fle and
his sponsor had provided prior cousel with all of the necessay documentation to complete the
frm via fax prior to te respondent's proceedings on Mach 28, 2012, resulting in preterission
of his application. See id. at 6. The respondent frher claims that prior counsel advised him that
a continuace would be grated at the heaing on Mach 28, 2012, such that his witesses need
not appear in court. See id. As such, the respondent alleges that he provided prior counsel with
all of te necessay infrmation needed to complete the adjustment of status application but prior
counsel filed to do so, instead relying on a request fr a continuance at the March 28, 2012,
hearing. See id. at 5-9.
A successfl motion based on a claim of inefective assistance of counsel must satisf two
conditions. First, the clam must comply with Mater of Lozada, 19 l&N Dec. 637, 639
(IA 1988). Briefy, the Lozada requirements are (1) tat the motion be suppored by an
afdavit detailing counsel's filings, (2) that counsel be infred of the allegations, and (3) that
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Cite as: David Kirwa Kurgat, A089 003 420 (BIA Apr. 25, 2014)
A089 003 420
te motion show that disciplinary charges have been fled wit the appropriate autority, or if not,
adequately explain why not. Id. Second, te alien "must also show that he or she wa prejudiced
by the actions or inactions of counsel." See Mater of Assaad, 23 l&N Dec. 553, 556 (BIA 2003).
I ths case, the respondent has complied wit the procedural requirements of Mater of Lozada,
supra.
As to the issue of prejudice, te respondent claims that he ad his sponsor provided all of the
inforation needed to complete the Afdavit of Support prior to the March 28, 2012, heang.
In his response, prior counsel submitted evdence showing tat te sponsor faed to him,
inter alia, a sum a of her prior year's t retu ad a employment leter.1 However, prior
counsel claims tat fr various reasons tis iforation was isufcient to complete the
Afdavit of Suppor. Along wit his motion, te respondent has provided an afdavit fom the
sponsor. In her afdavit, te sponsor states she was told by prior counsel that he had received
her documents ad tat he was going to fle the Afdavit of Support befre the next heaing.
Tus, the respective clams in regad to tis sponsor by the respondent ad prior counsel ae in
contradiction.
Te respondent aso asserts though his motion that he provided prior couel wit his entire
fle fom a previous counsel befre the March 28, 2012, hearing. I this regad, prior cousel
states in his responses to bot the respondent and the bar ofcias tat he did not receive the fle
util afer the Mach 28, 2012, proceedings. For his pa, te respondent provided a fa he sent
to prior counsel fom detention on Febry 15, 2012, ad states that, along wit that fa,
he faed over his entre fle. Wile the fa submitted was only a page in lengt, it refrs to
a puorted previous fax, ad on the next page is a letter dated Februry 17, 2012, saying "I
hereby fa to you" the respondent's convicton records. Again, as to ths issue, te respective
claims by te respondent ad prior counsel ae in contradiction.
Te respondent aso asserts that prior counsel advised him tat court appeaaces by his
witesses were not necessay on March 28, 2012, on te basis of a request fr a continuace.
See Respondent's Motion at 6. In tis regard, the respondent has provided a davit fom these
witesses stating their undertanding tat prior counsel had indicated tat they need not attend
the Mach 28, 2012, heaing. However, prior counsel disputes tis claim vigorously in his
responses, asserting tat he would never advise a client in ths way because he could never kow
tat a Immigraton Judge would in fct gant a continuance. Again, te fcts on te issue ae in
dispute.
Under these circumstaces, we conclude that fr puroses of the instant appeal ad motion,
the respondent has met his burden of establishing a prima facie inefective assistace of counsel
claim, requng a remad to the Immigation Judge to detere the tuth in regad to te
various issues ad claims by both the respondent ad prior counsel. I ths regard, on remad,
the Immigation Judge should develop the record and fnd fcts pertinent to te inefective
1 Altough te employment leter is appaently not on leterhead ad there is no explicit
indication of te title of te person who siged the document, there is a business addess at the
botom of the leter ad te notation "R AON" appeas next to the signatory's nae, which
may indicate a title ador position.
2
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Cite as: David Kirwa Kurgat, A089 003 420 (BIA Apr. 25, 2014)
A089 003 420
asistace of counsel claim. The Immigation Judge should also consider the respondent's
aguments on appeal that he misstated the respondent's crmina record in denying volunty
depaure. I ts regad, we also note tat it is incumbent on te Immigation Judge to balace
all of the fvorable and unfavorable fcts in assessing the respondent's mora chaacter ad i
exercising discretion.
Accordingly, the motion will be ganted, ad the record will be remaded to the Imigation
Judge fr fer proceedings consistent wt this opinion and fr enty of a new decision.
ORER: The motion is granted, ad the record is remaded to te Immigation Judge fr
fher proceedings consistent with this opinion ad fr enty of a new decision.
3
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Cite as: David Kirwa Kurgat, A089 003 420 (BIA Apr. 25, 2014)
•.
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
KANSAS CITY, MISSOURI
File: A089-003-420
In the Matter of
DAVID KIRWA KURGAT
RESPONDENT
CHARGES:
March 28, 2012
IN REMOVAL PROCEEDINGS
237 (a) (1) (C) (i).
APPLICATIONS: Continuance; adjustment of status.
ON BEHALF OF RESPONDENT: WAYNESWORTH ANDERSON, ESQUIRE
ON BEHALF OF DHS: JUSTIN HOWARD, ESQUIRE
ORAL DECISION OF THE IMMIGRATION JUDGE
The Respondent is a 31-year-old male, native and
citizen of the country of Kenya, who was issued a Notice to
Appear on August ·21, 2008. See Exhibit 1.
At a Master Calendar hearing on April 15, 2010, the
Respondent appeared with counsel and submitted a written
pleading conceding allegations one through four in the Notice to
Appear, as well as the charge of removability. Kenya was
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(
designated as the country of removal by the Respondent. See
Section 240 (c) (1) (A) of the Act.
The issue before the Court today concerns the
Respondent's application for a continuance of his Merit hearing
in order to further prepare his application for adjustment of
status pursuant to an approved I-130.
This matter has been pending since August 21, 2008,
when the Respondent was personally served with the Notice to
Appear. The matter was then first scheduled October 1 of 2008,
and rescheduled to October 8, 2008, when the Respondent was
detained. It was then rescheduled after his appearance by
televideo to September 10, 2009. At that time, the Respondent
requested a continuance to obtain an attorney and the matter was
postponed to January 14, 2010, when it was deliberately
advanced, on the docket, to the next setting on April 15, 2010.
At that time, the matter was postponed at Respondent's request
for attorney preparation. The next setting was November 4,
2010, at which time the matter was postponed to allow the
Respondent to file his application for adjustment and pursue an
I-130. The next setting was August 25, 2011, at which time the
matter was continued for attorney preparation by Respondent's
counsel. The next setting occurred when the Respondent was
detained once again on February 24, 2012. At that time, the
matter was continued until the present setting to allow the
Respondent to prepare his documents in support of his
A089-003-420 2 March 28, 2012
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·.
 �
 
I
(
application for adjustment of status. It should be noted that
another previously set Merit hearing was removed from that spot
in the docket today and rescheduled to accomodate Respondent's
hearing request on the merits of his adjustment application.
.
Respondent has appeared today with counsel requesting
a further continuance because the Form I-864, Affidavit of
Support, is not prepared or filed with the Court.
The Respondent's request for a further postponement of
his case is denied.
STATEMENT OF THE LAW
Pursuant to 8 C.F. R. Section 1240. 6, an Imigration
Judge may decline to grant a request for a continuance unless
the party seeking the postponement can demonstrate "good cause"
for the delay. The request for the delay may be made at his or
her own instance or either party and the Imigration Judge has
broad discretion to grant or deny the request.
The regulations do not contain an exact definition of
what constitutes "good cause" for a continuance. The BIA has
defined the parameters of "good cause" in different ways,
depending on the facts and circumstances presented. For
example, in Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983), the
Board set a high standard for adjudicating Motions to Continue
to give the Respondent more time to prepare and the opportunity
to obtain additional evidence. Under the Sibrun ruling, these
motions must be accompanied, at a minimum, by a "reasonable
A089-003-420 3 March 28, 2012
Mt 4 . . . . . & .1
A .
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1.
showing that the lack of preparation occurred despite a diligent
good-faith effort to be ready to proceed. " Id at 356.
The Board of Immigration Appeals has further
recognized, in Matter of Hashmi, 24 I&N Dec. 785, 787 (BIA
2009), that.an !J's decision denying a continuance will not be
reversed on appeal unless the Respondent establishes that the
denial caused him actual prejudice and harm and it materially
affected the outcome his case.
In the Eighth Circuit case of Grass v. Gonzales, 418
F. 3d 876 (8th Cir. 2005), it was held that there was no
jurisdic.tion to review the wholly discretionary decision by an
Imigration Judge to deny a request for continuance of a removal
hearing.
FINDINGS AND CONCLUSIONS
In consideration of the procedural history in this
case, the Court finds the Respondent has failed to complete his
application tor relief from removal in a timely manner and the
reasons offered for not completing it do not constitute "good
cause" to postpone the removal proceedings any longer. Further,
Respondent has been given an adequate opportunity to prepare his
applications and requests at this point and there's no
justifiable excuse for delaying his case any further. Based on
the Respon�ent's previous convictions for driving under· the
influence of alcohol in 2006, two ·times in 2009; and in 2010, he
has not established sufficient good moral character to justify a
A089-003-420 4 March 28, 2012
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·.
(
grant of post-decision voluntary departure. Therefore, in
consideration of all the forgoing, the following orders are
entered:
ORDER
IT IS HEREBY ORDERED that 'Respondent's Motion for
Continuance is denied.
IT IS FURTHER ORDERED that the Respondent having
failed to complete his application for adjustment of status that
the same is hereby pretermitted by the Court.
The Respondent is not eligible for voluntary
departure, having not established good moral character for the
requisite period of time under the statutes.
Therefore, the Respondent is ordered removed to the
country of Kenya pursuant to the charge contained in the Notice
to Appear.
igration Judge
A089-003-420 5 March 28, 2012
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(
(
.
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
JOHN R. O'MALLEY, in the matter of:
DAVID KIRWA KURGAT
A089-003-420
KANSAS CITY, MISSOURI
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Imigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Immigration Review.
Norma Danfelt (Transcriber)
YORK STENOGRPHIC SERVICES, Inc.
June 11, 2012
(Completion Date)
sac/jma
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