U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church. Virginia 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Maturi, Henry N OHS/ICE Office of Chief Counsel - HOU
Law office of Henry Maturi 126 Northpoint Drive, Suite 2020
2502 Westerlake Drive Houston, TX 77060
Pearland, TX 77584

Name:OPONDO,CAROLYNE A 089-365-877
Riders:

Date of this notice:5/21/2020

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Greer, Anne J.
Wilson, Earle B.
Donovan, Teresa L.

Userteam: .Docket

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Cite as: Carolyne Opondo, A089 365 877 (BIA May 21, 2020)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

Files: A089-365-877 - Houston, TX Date:

MAY 2 t 2020

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In re: Carolyne OPONDO

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENTS: Henry N. Maturi, Esquire

APPLICATION: Reopening

On July 11, 2019, an Immigration Judge denied lead respondent's motion to reopen and rescind
a March 6, 2019, in absentia order of removal. 1 The respondent, native and citizen of Kenya, now
appeals. The appeal will be sustained, and the record will be remanded.

We review an Immigration Judge's findings of fact, including findings regarding witness

credibility and what is likely to happen to the respondent, under a "clearly erroneous" standard.
8 C.F.R. § 1003.l(d)(3)(i); Matter ofZ-Z-O-, 26 I&N Dec. 586 (BIA 2015). We review all other
issues, including questions of law, discretion, and judgment, under a de novo standard. 8 C.F.R.
§ 1003.l(d)(3)(ii).

In her motion and on appeal the respondent asserts that she demonstrated exceptional
circumstances warranting reopening and rescission of her March 6, 2019, in absentia order of
removal. See section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii). She explained that she did not appear at the
March 6, 2019, hearing because she and her attorney were under the impression that her hearing
would be rescheduled due to the government shutdown that took place from December 22, 2018-
January 25, 2019 (Respondent's Br. at 3; Motion at 1). According to the respondent, her attorney
called the EOIR status line throughout January and February 2019, and was advised that the
respondent's case would be rescheduled (Respondent's Br. at 3; Motion at 1). A week before the
March 6, 2019, hearing, the attorney called the EOIR status line and the Houston Immigration
Court, both of which indicated that the respondent was not scheduled for a hearing (Respondent's
Br. at 3-4; Motion at 2). Court personnel indicated that a notice of hearing would be mailed
(Respondent's Br. at 3-4; Motion at 2).

The lead respondent's case was consolidated with her children's cases. The lead respondent will
be referred to as "the respondent."
1

Cite as: Carolyne Opondo, A089 365 877 (BIA May 21, 2020)
A089-365-877 et al.

In support of her explanation for why she did not appear on March 6, 2019, the respondent
provided a May 7, 2019, email from Carrie Law, the Department of Homeland Security attorney
who appeared in court on March 6, 2019. Ms. Law stated that she did not oppose the respondent's
motion to reopen, and indicated that she suspected that something was wrong with the scheduling
on March 6, 2019, because the respondent was not on DHS's docket for that day, but was on the
Immigration Judge's docket (Respondent's Br. at 4, Attached Exh. B).

Immigrant & Refugee Appellate Center, LLC | www.irac.net

The record also reflects that the respondent has a pending Form 1-360 (Petition for Amerasian,
Widow(er), or Special Immigrant) filed with the United States Citizenship and Immigration
Services on June 5, 2017, after the death of her United States citizen husband.2 Thus, she has an
incentive to appear at scheduled hearings (Respondent's Br. at 7).

Given the totality of the circumstances, including the corroborating evidence of Ms. Law's
email and the respondent's diligent and reasonable efforts to determine the status of their hearing
after the government shutdown ended, we are persuaded that the respondent sufficiently
demonstrated exceptional circumstances that were beyond her control. Matter of W-F-, 21 l&N
Dec. 503, 509 (BIA 1996) (explaining that "one must look to the 'totality of circumstances' to
resolve this issue of exceptional circumstances."); cf Matter of J-P-, 22 l&N Dec. 33, 36
(BIA 1998) (a lack of diligence is a factor that undercuts a motion to reopen in absentia). Thus,
we will reverse the Immigration Judge's decision not to grant reopening and rescission of the
March 6, 2019, in absentia order of removal.3

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: The Immigration Judge's March 6, 2019, in absentia order of

removal is rescinded, and these proceedings are reopened.

FURTHER ORDER: The record is remanded for further proceedings.

------qS _�L·--
FOR THE BOARD

2
According to uscis.gov, the petition remains pending as of the writing of this decision.
Having determined that reopening and rescission is warranted, we need not address the
respondent's remaining appellate arguments, including whether the Immigration Judge's denial of
3

the motion violated the respondent's due process.

2
Cite as: Carolyne Opondo, A089 365 877 (BIA May 21, 2020)