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Patrick Kipkurui Rotich Kemboi, A097 683 060 (BIA May 29, 2014)

Patrick Kipkurui Rotich Kemboi, A097 683 060 (BIA May 29, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record because the immigration judge erroneously concluded that respondent failed to file a motion to reopen within 180 days of the entry of an in absentia order of removal, and because the immigration judge did not evaluate the respondent's claim of ineffective assistance of counsel. The Board also stated that because the motion was filed pro se, the failure to pay the filing fee was insufficient alone to deny the motion. The decision was written by Member Elise Manuel.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record because the immigration judge erroneously concluded that respondent failed to file a motion to reopen within 180 days of the entry of an in absentia order of removal, and because the immigration judge did not evaluate the respondent's claim of ineffective assistance of counsel. The Board also stated that because the motion was filed pro se, the failure to pay the filing fee was insufficient alone to deny the motion. The decision was written by Member Elise Manuel.

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Published by: Immigrant & Refugee Appellate Center, LLC on Jul 10, 2014
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U.S.

Department of Justice
Executive Ofce fr Immigration Review
8oar4ofImmigrat/onappea/s
Ojceofthec/erk
5/07 leesbm·
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Pike, Suite 2000
Fals Church, Vr
g
inia 20530
KEMBOI, PATRICK KIPKURUI ROTICH
P.O. BOX 16973
OHS/ICE Ofice of Chief Counsel - DAL
125 E. John Carpenter Fw, Ste. 500
Iring, TX 75062-2324 FORT WORTH, TX 76126
Name: KEMBOI, PATRICK KIPKURUI R. .. A 097-683-060
Date of this notice: 5/29/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Manuel, Elise
Sincerely,
|´  :w
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Patrick Kipkurui Rotich Kemboi, A097 683 060 (BIA May 29, 2014)
U.S. Deparent of Justice
Executive Ofce fr l�igration Review
Falls Church, Virginia 20530
File: A097 683 060 - Dallas, T
In re: PATRICK KIPKURUI ROTICH KEMOI
IN RMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
APPLICATION: Reopening
Decision of te Board of Immigation Appeals
Date:
MAY Ì
92014
The respondent appeals fom the January 17, 2013, Immigration Judge's decision denying
the respondent's motion to reopen removal proceedings which had been conducted in absentia on
September 5, 2012. The Departent of Homelad Security (DHS) has not fled an opposition to
the appeal. The record will be remaded fr the ent of a new decision.
The Board reviews fndings of fct by an Immigration Judge under te clealy erroneous
standard of review, and may review questions of law, discretion, and judgment and all other
issues in appeals fom decisions of Immigration Judges de novo. See 8 C.F.R. §§ 1003.l(d)(3)(i),
(ii).
A in absentia removal order may be rescinded where an alien fles a motion to reopen
within 180 days establishing that exceptional circumstances caused the failure to appea. See
section 240(b)(5)(C)(i) of te Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(i);
8 C.F.R. § 1003.23(b)(4)(ii). The respondent fled his motion witn 120 days of the
September 5, 2012, order. Consequently, the Immigration Judge's denial based upon the motion
not being fled within 90 days of the fnal order is in eror. 1
The Immigration Judge also denied the motion on the basis that the respondent's frmer
counsel appeared on September 5, 2012, and represented that he had infrmed the respondent of
his hearing. The respondent's motion includes an afdavit, and appears to comply with the
requiements of MaaeroJ Lozada,19 I&N Dec. 637 (BIA 1988), alleging that hs frer counsel
advised the respondent that he would be re-scheduling the September 5, 2012, heaing ad that
the respondent should secure new counsel. The record appeas not to contain ay rebutal fled
by his frmer counsel, ad the Immigration Judge did not indicate whether the respondent's
flings comply with Matter of Lozada, supra.
1 The Immigration Judge also denied the motion fr failure to include the requisite fling fe.
However, there is no indication that the motion was reted to the respondent by way of a
rejection notice with a waing that a fe must be pad, which would have allowed te
respondent a opporunity to re-fle the motion with the proper fe. Considering that the motion
was fled pro se, we fnd filure to pay the fling fee in these circwstances insuffcient alone to
deny the motion.
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Cite as: Patrick Kipkurui Rotich Kemboi, A097 683 060 (BIA May 29, 2014)
A097 683 060
Because te Boad may not engage in fctfnding in the course of deciding appeals (See
8 C.F.R. § 1003.l(d)(3)(iv)), we fnd remad approprate fr fher fct-fnding by the
Immigation Judge, including a evaluation of the respondent's clam of inefective assistace by
his frer cousel. I remading this case, we intimate no opinion a to te utmate merts of
the respondent's appeal.
Accordingly, the fllowing order will be entered.
ORER: Te record is remaded to the hmigation Judge fr frter proceedings
consistent wit te fregoing opinion ad fr the ent of a new decision.
FOR TE BOA
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Cite as: Patrick Kipkurui Rotich Kemboi, A097 683 060 (BIA May 29, 2014)
'1• .
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_

UITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., ROOM 404
DALAS, TX 75242
KEMBOI, PATRICK KIPKURUI ROTICH
5008 OVERTON RIDGE CIRCLE 213
FORT WORTH, TX 76132
IN THE MATTER OF FILE A 097-683-060
KEMBOI, PATRICK KIPKURUI ROTICH
UABLE TO FORWARD - NO ADRESS PROVIDED
DATE: Jan 18, 2013
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JGE. THIS DECISION
IS FINAL ULESS A APPEAL IS FILED WITH THE BOAD OF IMMIGRATION APPEALS
WITHIN 30 CALENAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOU NOTICE OF APPEAL, ATTACHED DOCUMETS, A FEE OR FEE WAIVER REQUEST
MUST BE MILED TO: BOAR OF IMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
· ·"
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUGE AS THE RESULT
OF YOU FAILURE TO APPEA AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEAING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMIGRATION A NATIONAITY ACT, 8 U.S.C.
SECTION 1252B{c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 u.s.c. SECTION 1229a{c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMIGRATION COURT
1100 COMMERCE ST., ROOM 404
,
DAL�X 75242
�    
' OTHER: |\ � l  l
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__ _  
CC: JAVIER, LYNN ���¿
125 E. H 114 ,; ·-�· �500
IRVING I TX I • " . ., 't

. �,
,
COURT CLERK
IMMIGRATION COURT FF
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Cite as: Patrick Kipkurui Rotich Kemboi, A097 683 060 (BIA May 29, 2014)
¹
United States Depaent of Justice
Executive Ofce of Immigration Review
Immigration Cour
Dallas, Texas
In Re: Patick Rotch Kemboi Case No. A097-683-060
Order Denying Motion to Re-Open
This mater is befre the Court pursuat to te Respondent's Jauay 3, 2013
Motion to Re-Open. For the reasons set frth below, the Motion will be Denied.
Te Court is without jurisdiction to hea the cwrent Motion to Re-Open because
no fling fee has been pad. 8 C.F.R. §1003.23(b)(l)(ii) specifes that a motion "must be
fled in duplicate wit the Immigration Court, accompanied by a fee receipt."( emphasis
supplied). A review of the record reveas that no flig fe was paid. None of the
exceptions allowng fr the Motion to Re-Open to be fled without a fling fee set frth in
8 C.F.R. §1003.24(b)(2) apply in this case. Even though the Court entered an in absent/a
order, Respondent does not base his motion on a lack of notice. He acknowledges
knowing of the hearing and deciding not to appea. Therefre a fling fe is requied. The
Motion to Re-Open was improvidently fled ad the Court has no jusdiction over the
issues presented.
Additionally ad as an alterative gound, the Motion to Re-Open is untimely
fled. 8 C.F.R. §1003.23(b)(l) provides that the motion mut be fled wthin 90 days of
the enty of the fnal order. The Court entered a fnal order of removal on September 5,
2012. The motion was not fled until Jauay 3, 2013. Therefre it is temporally ba  ep
ad wll also be denied on that alterative basis.
Additionaly, there is no sua sponte bais upon which to re-open the cae. The
tascript of the September 5, 2012 heaing contradicts te allegations made by the
Respondent against M. Stewa. M. Stewa was present fr the heaing ad waited
hours fr te Respondent to appea and stated on the record that Respondent knew of the
cour date ad his obligation to be present.
Mich P. Baird
United States Immigration Judge
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Cite as: Patrick Kipkurui Rotich Kemboi, A097 683 060 (BIA May 29, 2014)

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