Rudolph, James B., Esq.

Rudolph, B;ker & Associates

419 19th Street
San Diego, CA 92102
Name: ORAHA, OSAMA MIKHO
U.S. Department of Justice
Executve Ofce fr Imigation Review
Board of Immigration Appeals
Ofice of the Clerk
. l 07 Leburg Pk, Suit 2000
Falls Churc, Viria 22041
OHS/ICE Ofce of Chief Counsel PHO
P.O. Box 25158
Phoenix, A 85002
A 096-742-979
Date of this notice: 12/10/012
Enclosed is a copy of the Board's decision ad order in the above-referenced case.
Enclosure
Panel Members:
Manuel, Elise L.
Sincerely,
D/ C D
Donna Car
Chief Clerk
Userteam: Docket
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Cite as: Osama Mikho Oraha, A096 742 979 (BIA Dec. 10, 2012)
U.S. Deparent of Justce
Executive Offr Imigaton Review
Falls Cch Virg 2201
File: A096 742 979 - Phoe, A
I re: OSAMA MHO ORAHA
I REMOVA PROCEEDIGS
APPEA
Decision of t Boad of Im gaton Apeals
Date:
|C
I9@
ON BEHALF OF RESPONDENT: Jaes B. Rudolph, Esquire
ON BEHAF OF DHS: Bret Ladis
Assistant Chief Counsel
APLICATION: Motion to repen
The respondet, a nve of I and citze of Caada, appeals fom the Janu 28, 2011,
decision of a Imigaton Judge, denying his moton to repen i orer to pursue ajusmeatof
status. The record will be remanded to the Imigaton Judge fr fher procedings ad the ent
of a new deision.
The Board reviews fndings of fact by a Imigation Judge only to deteine whete they are
clealy errca=us. 8 C.F .R. 1003.1( d)(3)(i); Matter ofS-H-, 23 I&N De. 462, 464-65 @u1c01y.
The Board reviews questons of law, discreton, and judget ad all other issues in appeals fom
decisions of Immigation Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii); Matter aJ A-S-B-, 24 I&N
Dec. 493 (u2008).
The respondent entered the Unite States on October 3, 2004, as a non-immignt "F-1" student.
He remaine in the United States beyond his period of authorizaton or afer Jauary 11, 2005. O
May 18, 2005, he married Ms. Kimberly Walker, a Unite States citize. During the martal
interview in Febr of 2006, Ms. Walke admitted tht she had married the respondent fr the sole
purose of helping h become a lawfl peanent resident. O October 4, 2006, a Notice to
Appear was filed. On Februay 12, 2008, an Imigaton Judge foud tht his application fr
adjustment of status had be abadone but allowed him the privilege of voluntarily departing the
United States. The respondent appealed. Dung te pendecy of the appeal, te respondent
departed the United States and the decision of the Im igaton Judge became fal, a though no
apeaIhad been tae. O Jauary 14, 2011, erescaeatfiled a motion to recea. The motion
was eaieby the Immigaton Judge ad is the subject of this appeal.
The reord shall be remanded for fher proceedings and the ent of a new decision by the
Immigation Judge. J seeking reopening, te respondet conceed tat the motion wa naue!y.
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Cite as: Osama Mikho Oraha, A096 742 979 (BIA Dec. 10, 2012)
A096 742 979
However, he contended that the actons of his attorey at the tme of his heang, M. Chu
A. Obiesie, were inefetve and that the tme limits fr fling a moton t repen, therefre, ought
to be tolled based on this due process violaton. He explains that he filed to repen soon afer it
be
ame apparent to h that attorey Obiesie had ben inefective ad this was reveale on
November 1, 2010, when he met with his cur ent atorey to discuss his cae. 1 Te moton filed
before the Immigaton Judge included, among ote things, a stateent fom the respondent siged
uder pealty of peru and a response from attorey Obiesie as to the allegation of inefetive
assistace of counsel made against h. 2 I spite of the respondent's speific golllds seeking
equitable tolling and his supportg evidence, the Imigaton Judge's deision consiste of two
setences, denyng the moton and finding it to be lllltmely.
I consideration of the respondent's specific claim of inefective assistance of counsel in the
moton to reopen ad the absence of any factual findings by te Immigation Judge a to it, we
c
anot conduct a proper apellate review. 8cc8 C.F.R. 1003.l{d)(3)(iv) (stating that the Boad
may not engage in fct finding in the couse of deiding appeals except fr takng administatve
notice of comonly kown facts). Matter oJ8-B-,23 I&N Dec. 462 (BIA 2002) (in light of Boad's
limited fact-fding ability on appeal, a remand is appropriate when the record is inadequate fr
review). Accordingly, a remand is war anted fr fhe proceedings. Upon remand, the
Ingation Judge shall ete the respondent's inefective asistance of cotllsel claim ad eter
explicit fdings of fct a to whether the respondent ha proven equitable tolling to excuse his
untimely motion t reopen and if so, wheter reopening is war ted as a matter of law ad
discretion.
Accordingly, the fllowing order will be entere.
ORDER: The record is remade fr frthe proceedings and the et of a new deision
consistent with this decision.
FOR T BOARD
1 Te record reflect that on October 23, 2010, the respondent mar ied Ms. Igacia Vazquez.
2 The goveent also filed an 8-page brief which was responsive to the respondent's claim of
inefetive assistace of counsel.
2
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Cite as: Osama Mikho Oraha, A096 742 979 (BIA Dec. 10, 2012)
+
. <
MAEK TINA N ESQ.
419 l9TH STREET
SAN DIEGO, CA 92102
IN THE MATTER OF
OR, OSA MIKO
(
. .
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMIGRTION REVIEW
IMIGRTION COUT
200 E. MITCHELL DR., SUITE 200
PHOix, AZ 35(12
FILE A 096-742-979 DATE: Jan 28, 2011
UNAHLE TO FORWAR - NO ADRESS PROVIDED
ATTACHID IS A COPY OF THE DECISION OF THE IMIGRATION JUDGE. THIS DECISION
IS FINA UNLESS AN APPE IS FILED WITH THE BOAD OF IMMIGRTION APPEALS
WITHIN 30 CALENDA DAYS OF THE DATE OF T! MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORS A INSTRUCTIONS FOR PROPERLY PREPAING YOUR APPEA.
YOU NOTICE OF APPEAL, ATTACHED DOCUMENTS, A FEE OR FEE WAIVR REQUEST
MU BE MILED TO: BOARD OF IMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHuCH, VA . 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE T APPEA AT YOUR SCHEDUED DEPORTATION OR REMOVA HEAING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED I ACCORACE
WITH SECTION 242B(c) (3) OF THE IMMIGRTION A 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 COUT:
CC: GOLPARVAR, KIOJRS
IMIGRATION COURT
200 E. MITCHELL DR., SUITE 200
PHOENIX, AZ 85012
IMIGRTION COURT
2035 N. CENTR AV., 2ND FL.
PHOENIX, AZ, 850040000
FF

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Tina Malek, Esq.
419 1 g Street
, San Diego, Califora 92102

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N. Cental Ave.

Phoenix, Azln 85004
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The Respondent's Moton To Reopen is denied. The motion is: untimely fled.
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"lJS.SO ORDERED.
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Dated tis 28t day of Jau, 201 I
L"-
United States Imigaion Judge
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