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Mirkhond Mirorifovich Kabilov, A205 379 500 (BIA June 3, 2014)

Mirkhond Mirorifovich Kabilov, A205 379 500 (BIA June 3, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an in absentia removal order upon finding the respondent’s failure to appear was due to “exceptional circumstances,” namely his former attorney's failure to answer telephone calls or notify the respondent of the time and date of the hearing. The decision was written by Member Sharon Hoffman and joined by Member John Guendelsberger and Member Elise Manuel.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an in absentia removal order upon finding the respondent’s failure to appear was due to “exceptional circumstances,” namely his former attorney's failure to answer telephone calls or notify the respondent of the time and date of the hearing. The decision was written by Member Sharon Hoffman and joined by Member John Guendelsberger and Member Elise Manuel.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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Published by: Immigrant & Refugee Appellate Center, LLC on Jul 21, 2014
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SMAHANENAANAA NAGHOUM

USA Law Group, LLC
111 NE 1st Street, 3rd Floor
Miami, FL 33132
U.S. Department of Justice
Executive Ofce fr Imigration Review
Boaráo/ I»»|grat|on4ppeals
Ojceo/t/eclerk
5107 Leeburg Pik, Suite 2000
Fall Church, Vrinia 20530
OHS/ICE Ofice of Chief Counsel - SNA
8940 Fourinds Drive, 5th Floor
San Antonio, T 78239
Name: MIRORIFOVICH KABILOV, MIRK ... A 205-379-500
Date of this notice: 6/3/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Hofman, Sharon
Manuel, Elise
Sincerely,
D/ c t
Donna Ca 
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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U.S. Department of Justice
Executive Offce fr Immigration Review
Decision of the Board oflmmigration Appeals
FaHs Church, Virginia 20530
File: A205 379 500 - San Atonio, TX
In re: MIRHOND MIRORIFOVICH KABILOV
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Smahane Naanaa Naghoum, Esquire
ON BEHALF OF DHS: CC Vassar
Assistant Chief Counsel
APPLICATION: Reopening
!Uh ~3 2014
The respondent, a native ad citizen of Uzbekistan, was ordered removed fom the United
States in absentia on November 13, 2012, afer not appeaing at a hearing. He fled a motion to
reopen on December 20, 2012, and appeals fom the Immigration Judge's March 5, 2013, denial
of the motion. The appeal wll be sustained.
The Board defrs to the fctual fndings of an Immigration Judge, unless they are clearly
eroneous, but it retains independent judgment and discretion, subject to applicable govering
standards, regading pure questions of law and the application of a particular standard of law to
those fcts. 8 C.F.R. § 1003.l(d)(3).
The respondent has established that his non-appearance at his hearing was caused by
"exceptional circwstances." See section 240(e)(l) of the Immigrations and Nationality Act,
8 U.S.C. § 1229a(e)(l); Matter a/ J-P-, 22 I&N Dec. 33 (BIA 1998) (considering the totality of
the circumstances in analyzing reopening of an in absentia removal order). In his afdavit, the
respondent indicates that his frmer counsel never answered her telephone calls ad did not
notif him of his hearing. 1 In addition, the respondent submitted a statement fom Ellada
Haj iyeva indicatig that te respondent's frmer attorey ceased working at her prior offce in
September 2012, that the respondent appeared at counsel's prior ofce on December 1, 2012,
and that several unsuccessfl attempts were then made to reach the respondent's frmer atorey.
In light of the fregoing, and the respondent's due diligence in fling his motion to reopen, we
fnd tat te respondent's non-appearance at his hearing was caused by an "exceptional
circumstace." Hence, we will reopen these proceedings ad remand the record fr a hearing.
On May 22, 2012, the Immigration Cou mailed the Notice of Hearing only to the
respondent's frmer attorey.
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A205 379 500
Accordingly, te fllowing order will be entered.
ORDER: The appeal is sustained, the in absentia order is vacated, and these proceedings are
reopened ad remaded fr proceedings consistent with te fregoing opinion.
2
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DEMETRIAES, TARA ESQ.
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
IMIGRATION COURT
800 DOLOROSA STREET-SUITE 300
SA ATONIO, TX 78207
1801 SOUTH O�EA DRIVE, SUITE J
HLLADALE, FL 33009
IN THE MATTER OF FILE A 205-379-500 DATE: Nov 13, 2012
MIRORIFOVICH KILOV, MIRKHOND
UABLE TO FORWAD - NO ADRESS PROVIDED
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUGE. THIS DECISION
IS FINAL ULESS A APPEAL IS FILED WITH THE BOAD OF IMMIGRTION APPEALS
WITHIN 30 CALENDA DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEA.
YOUR NOTICE OF APPEAL, ATTACHED DOCUENTS, A FEE OR FEE WAIVR REQUEST
MUST BE MAILED TO: BOAD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
� ATTACHED IS A COPY OF THE DECISION OF THE IMIGRTION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOU SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 2.4 2B ( c) ( 3) OF THE IMMIGRATION AND NATIONALITY 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:
OTHER:
IMIGRTION COUT
800 DOLOROSA STREET-SUITE 300
SA ATONIO, TX 78207
COURT CLERK
IMMIGRATION COURT
CC: DISTRICT COUNSEL
8940 FOURWINS DR., STH FLOOR
SA ATONIO, TX, 782971939
FF
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IN THE MATTER OF
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
UITED STATES IMIGRTION COURT
800 DOLOROSA STREET-SUITE 300
SA ATONIO, TX 78207
CASE NO. A205-379-500
MIRORIFOVICH KILOV, MIRKHOND
RESPONDENT
IN REMOVA PROCEEDINGS
CHGE(S): Section 212(a) (6) (A) (i) - Present in the U.S. without
having been admitted or paroled after inspection.
Section 212(a} {
Section 237(a} (
ON BEHAF OF RESPONDET:
DEMETRIAES, TA ESQ.
1801 SOUTH OCEA DRIVE, SUITE J
HALLANDALE, FL 33009
} (
) (
) ( ) -
} ( ) -
ON BEHAF OF THE DEPARTMET OF
HOMELA SECURITY:
Asst. District Counsel, USDHS
P.O. Box 1939
Sa Antonio, TX 78297-1939
MEMORNDUM AD ORDER
The above-entitled matter was scheduled for a hearing at
09:00 A.M. on Nov 13, 2012. The Department of Homeland Security appeared by and through its Assistant
District Counsel.
�Respondent was not present and no reasonable cause was provided for
respondent's failure to appear.
�Respondent's cousel of record was present but could offer no
reasonable cause for respondent's failure to appear.
Page 1 of 2
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A 205-379-500
The charging document, the Notice to Appear {Exhibit 1), indicates that
it was personally sered upon the respondent. A notice of the hearing was
__ mailed to respondent. The address to which the notice was mailed
is the last known address of record and is an Exhibit.
�mailed to respondent's counsel of record.
 _ .ersonally sered upon the respondent/respondent•s counsel
at a previous hearing.
�  not given to the respondent because the respondent failed to
provide the court with his/her address as required under
Section 239(a) ( 1) (F) of the Act after having been advised
of that requirement in the Notice to Appear.
The hearing notice (and any attachment thereto) is entered into the
hearing record as an Exhibit. The Imigration Judge determined to proceed
with a hearing in absentia pursuant to Section 240 of the Act.
In an in absentia hearing held pursuant to Section 240(b) (5) (A) of the
Act the Department of Homeland Security has the burden of proving the
alien is removable by evidence which is clear, unequivocal and convincing.
To meet its burden of proof the Department of Homeland Security offered:
Form I-213 Record of Inadmissible/Deportable Alien.
Conviction documents.
A
Other: /le l4g�r AT ' hfVlo VI H1 -4 ,µt.
The Imigration Judge finds that the evidence offered by the Department
of Homeland Security relates to the respondent and it is entered into
the record as an Exhibit.
The respondent, not being present, was unable to meet any applicable
burden of proof or to apply for or establish eligibility for any relief to
prevent removal from the United States. Ay previously filed relief
application is deemed abandoned by respondent's failure to appear.
Upon consideration of all the evidence of record, which the Immigration
Judge finds to be clear, unequivocal and convincing, the Immigration Judge
concludes that the respondent is subject to being removed from the United
States for the reason(s) charged in the Notice to Appear.
WHEREFORE, IT IS HEREBY ORERED that
United States to U � I E Jl 17HM
Dated: #& V. J Z a d Ir
Page 2 of 2
respo:t b?ved from the
GLEN P. MCPHAUL
Immigration Judge SS
•• r\ Ii 0F SERVICE
.. • ;1tUMENT WAS SERVED BY: MAIL (M)
PERSONAL SERVICE (P)
fO: ÕiALIEN [ ] ALIEN c/o Custodial Ofice
[ J ALI EN'S AT/REP
DATE: O-ly @r. STAFF �
Attachments: ( J EOIR-33 ( l EOIR-28
l J Legal Services List ( l Other
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