Ogueri, Gabriel

Ogueri & Associates P .C.

5646 Milton Street, Suite 7 45
Dallas, TX 75206
U.S. Department of Justice
Executive Offce fr Immigration Review
Board oflmmigratio11 Appeals
Qfice of the Clerk
51117 l.ceslmrg Pike. Suite JOO(
/i1/I.\ C/11m:h. Virginia J JO. I
OHS/ICE Ofice of Chief Counsel - DAL
125 E. John Carpenter Fwy, Ste. 5
Irving, TX 75062-2324
Name: KERINA, FREDRICK MONYONCHO A093-442-983
Date of this notice: 4/24/2012
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Kendall-Clark, Molly
Manuel, Elise L.
Miller, Neil P.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Frederick Monyoncho Kerina, A093 442 983 (BIA Apr. 24, 2012)
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File: A093 42 983 - Dalla, 1
I re: FRRCK MONONCHO KA
I REMOVAL PROCEIGS
CETIICATION
Date:
ON BE OF RSPONDET: Gbrel Oguer, Esquire
ON BEHALF OF DHS: Margaet M. Prce
Assistant Chief Counsel
APLICATION: Reonsiderton, rpening
APR . 4 2012
The respondent appeed fom the Immigaton Judge's Mch 16, 2011, decision denyng
his moton to reconsider.1 To avoid any issue regading te timeliness of the respondent's appe,
the Boad wll te jursdicton over this appeal by certifcon. See 8 C.F.R 1003.2(a). The
Imigon Judge's deision wbe reverse the proces Wbe repene, ad the rerd w
be rede.
On Ocober 25, 2010, two days before the ne scheduled hearing m tis case, te
Immigton Judge issued a wtten deision fnding that the respondent had abadoned his
applicatons fr lack of prosecution under 8 C.F.R. 1003.Jl(c), because he fed to sbmit his
aplcons by the October 13, 2010, dee set by the Immigaton Judge. Ureviewing the
rerd, we ae persuade that the Imigon Judge improperly entere a wten order fding d
al relief ben abadone ad wtherefre revers the I igaton Judge's deson denying
the moton to reonsider ad wrepen thes proceedings. A revew of the rerdi of the heing
a which the Immigaton Judge impose a dee fr the submission of applictons reveals no
discussion of volunta depaure. The respondent had, however, m a prior wtten motion fr
continuance epressed a desire to pursue volunta depaure dhe could not pursue adjustment.
Under the circces, where there G no frm to submit to apply fr volunty deparre, the
Immigton Judge should not have issue a wtten deision fnding al applictons abandone
whout providing the repondent the oppor to pursue his applicaton fr volu depare.
Thus, we ae cnvc that the Ocober 25, 2010, wten deision was m eror, and that
recnsideration ad repening are warated.
I additon, the Imigation Judge's Ocober 25, 2010, order states tha 8 C.F.R.
I 003 .31 ( c) is "mdator, not disceonar ad that the Iigon Judge "no choice" but
1 The Imigton Judge constre te respondent's moton a both fr reonsideraon ad to
reopen proceedings.
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Cite as: Frederick Monyoncho Kerina, A093 442 983 (BIA Apr. 24, 2012)
A093 42 983
to fnd the applicatons aadone, ad the Imgation Judge reiterated this undestdig in the
deson denyng te respondent's motion (I.J. a 5-6 n.3). The Boad held that the
Immigtion Judges have broad discreton to conduct ad contol imigaton procegs, icluding
te athort to s fling dees fr applications ad rlated documents. Se Mater of Interao
Rosa, 25 IN De. 264, 265 (I 2010). The applicable regulaton aso allows the Iigaton
Judge the discretion to eend dees. See 8 C.F.R 1003.3 l(c);see alo, e.g., Dedi v. Mukey,
525 F.3d 187 (2d Cir. 2008) (holding in par tat the Imigaton Judge had discreon to deate
fom fg dees in loca rles). Whether a fng dedline should be eende is a quesion of
judgent ad discreton that te Boad reviews de novo. See 8 C.F.R 1003. l(d)(3)(ii). I tis
case, te Imigaton Judge appes to have declined to consider wheter a resonable exlaaton
ben provded, or good cause had been show, fr the filure to fle the adjusment applicaton
by the dealine becas he was under the msapprehension that it was madator fr Nto fnd ta
the filure to meet the deadline reuire Nto de the oppority to fe te application waived.
On de novo review, ad cnsidering the totait of the circumstaces presente in the motion ad on
appea, we fnd it appropriate to allow te respondent aother opportty to submit hs application
fr adjusent of status on remad.
I vew of the fregoing, we W reverse the Imgation Judge's decisio repen these
proce gs, ad remad to allow te respondent a opportnit to pursue bot volunta depaure
ad ajuset of status. Accordingly, te fllowing order will be entered.
ORE: The Immigaton Judge's deision is reversed these remova proceedings ae
reopened, ad the reord is reded to te Imigtion Cour fr fher proceedings.
FOR 1BOARD
. 2
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Cite as: Frederick Monyoncho Kerina, A093 442 983 (BIA Apr. 24, 2012)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
I THE MA TIER OF: )
)
KERINA, FREDERICK MONYOMCHO )
) I REMOVAL PROCEEDINGS
)
RESPONDENT
) A 093-442-983
CHARGES:
APPLICATION:
Section 237 (a)( l )(B) of the Immigration and Nationality
Act, as amended, in that afer admission as a nonimmigant
under Section IOl(a)(lS) of the Act, you have remained in
the United States fr a time longer than permitted, in
violation of this Act or any other law in the United States
Motion to Reconsider & to Reopen 1
ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE
DEPARTMENT OF HOMELAND
SECURITY:
Gabriel Ogueri, Esq.,
Ogueri & Associates, P.C.
5646 Milton Steet, # 745
Dallas, TX 75206
Margaret Price, Esq.
Asst. Chief Counsel- ICE
125 E. John Capenter Fwy., Ste. 500
Irving, TX 75062-2324
ORDER OF THE COURT
Te Respondent has fled a Motion to Reconsider and to Reopen the above-
captioned case. For the fllowing reasons, the Motion will be DENIED.
1 See "Legal Standards," ina. While the Motion is titled "Motion to Reconsider," it also has characteristics
common to Motions to Reopen.
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WRITTEN DECISION OF THE IMMIGRATION JUDGE
FACTUAL AND PROCEDURAL HISTORY
The Respondent is a male, native and citizen of Kenya. Exhibit I. On or about
June 14, 2003 the Respondent wa admited into the United States as a nonimmigant
visitor, with authorization to remain in the United States fr a temporary period not to
exceed December 13, 2003. J The Respondent remained in the United States beyond
December 1 3, 2003 without authorization fom the Goverent. J
On October 7, 2009 the Department of Homeland Security (DHS or the
Goverent) sent to the Respondent, by certifed mail, a Notice to Appear (NTA),
charging him with removability under Section 237(a)(l)(B) of the Act, in that afer
admission as a nonimmigrant, he remained in the United States fr a time longer than
peritted. d
At a hearing on July 28, 2010, the Respondent appeared befre the Court, with
counsel, and admitted the Goverent's allegations and conceded the charge of
removability. Thus, the Court fund the Respondent removable by clear, unequivocal,
and convincing evidence. See INA 240(c)(3)(A). The Respondent declined to
designate a country of removal, and the Court designated his country of removal as
Kenya. At the hearing, the Court set the Respondent's deadline fr submitting any
applications fr relief as October 13, 2010, pursuant to 8 C.F.R. 1003.3l(c).
The Respondent did not submit any applications fr relief by the October 13th
deadline. Accordingly, on October 25, 2010 the Court deemed that the Respondent had
waived the opportunity to submit any application fr relief. See 8 C.F.R. 1003.3l(c)
("The Immigration Judge may set and extend time limits fr the fling of applications and
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related documents and responses thereto, if any. If an application or document is not fled
within the time set by the Immigration Judge, the opportunit to fle that application or
document shal be deemed waived.") (emphasis added).
On October 25, 2010 the Court ordered that the Respondent's applications fr
relief be deemed abandoned pursuant to 8 C.F.R. 1003.3l(c), and ordered the
Respondent removed to Kenya.
On November 1 7, 2010 the Respondent submitted the present Motion to
Reconsider and to Reopen. In his Motion, he argues that his case should be reopened
because his attorey mistakenly thought the application was due on October 27, 2010, the
date of his next hearing. Also in his Motion he requested that the Court reopen his
proceedings so he can apply fr adjustment of status based upon a pending Petition fr
Alien Relative (Form 1-1 30) fled by the Respondent's United States citizen (USC) wif.
Respondent's Motion to Reconsider and to Reopen, dated November 17, 20 I 0.
On November 24, 2010 the Respondent submitted an Amendment to his Motion
to Reconsider and to Reopen, requesting that the Court reopen his case so he can apply
fr adjustment of status based upon the newly-approved I-130 Petition fled by his USC
spouse. Respondent's Motion to Reconsider, dated November 17, 2010.
The DHS did not submit a response.
LEGAL STANDARS
Motions submitted to the Immigration Court are construed according to content,
rather than title. Immigration Court Practice Manual, Ch. 5, pg. 86. The present Motion,
while titled "Motion to Reconsider," has characteristics common to motions to reopen.
Thus, the Court treats this Motion as both in its analysis.
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A. Motion to Reconsider
A motion to reconsider is a request that the Court reexamine its decision in light
of additional legal arguments, a change of law, or an argument or aspect of the case
which was overlooked. Matter of Ramos, 23 I. & N. Dec. 336, 338 (BJ.A. 2002)
(quoting Matter of Cerna, 20 I. & N. Dec. 399, 402 n.2 (BJ.A. 1991)). A motion to
reconsider alleges that at the time of the Court's previous decision an error was made; it
questions the Court's decision fr alleged errors in appraising the fcts and the law.
Matter of Cera, 20 I. & N. Dec. at 402. When the Court reconsiders a decision it is, in
efect, placing itself back in time and considering the case as though a decision on the
record had never been entered. J The very nature of a motion to reconsider is that the
original decision was defctive in some regard. J
Thus, a motion to reconsider must state the reasons fr the motion by specifing
the erors of fct or law in the Court's prior decision, and must be suppored by pertinent
authority. 8 C.F.R. 1003.23(b)(2). A motion to reconsider must be fled within 30 days
of the date of entry of a fnal administrative order of removal, deportation, or exclusion.
8 C.F.R. 1003.23(b)(l ). A respondent may only fle one motion to reconsider. J
B. Motion to Reopen
A motion to reopen fr the purpose of providing the alien an opportunity to apply
fr any frm of discretionary relief will not be granted if it appears that the alien's right
to apply such relief was flly explained to him by the Immigration Judge and an
opportunity therefre was aforded at the hearing, unless the relief is sought on te basis
of circumstances that have arisen subsequent to the hearing. 8 C.F.R. 1003.23(b)(3). A
motion to reopen will not be granted unless the Immigration Judge is satisfed that the
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evidence sought to be ofered is material and was not available and could not have been
discovered or presented at the frmer hearing. Id
A immigration judge has broad authority to grant or deny a motion to reopen.
INS v. Dohert, 502 U.S. 314, 322 (1992). A immigration judge may deny a motion
even where there is prima facie eligibility fr relief, if the relief sought would be denied
a a matter of discretion. INS v. Rios-Pineda, 471 U.S. 444, 449 (1985). A respondent
must therefre establish a prima facie case fr the underlying substantive relief sought
and must show that he warrants relief in the exercise of discretion, or his motion to
reopen will be denied. See e.g., INS v. Abudu, 485 U.S. 94 (1988); INS v. Dohert, 502
U.S. 314, 315-16 (1992). A respondent requesting a motion to reopen bears a "heavy
burden." See Matter of Coelho, 20 I. & N. Dec. 464, 472 (BJ.A. 1992); Matter of Pena
Diaz, 20 I. & N. Dec. 841, 844 (BJ.A. 1994).
The Court may exercise its sua sponte authority to reopen in "truly exceptional
situations," where the interests of justice would be served. Matter of G-D-, 22 I.& N.
Dec. 1132 (BJ.A. 1999); see also Matter of J-J-, 21 I. & N. Dec. 976 (BJ.A. 1997)
(holding that the Court has discretion to reopen a case sua sponte; however, that
discretion is limited to cases where exceptional circumstances are demonstrated).
A. Motion to Reconsider
ANALYSIS
To the extent that the present Motion is a Motion to Reconsider, the Respondent
has not met his burden. The Respondent does not specify any errors of fct or law in the
Court's prior decision. Rather, the Respondent states that his attorey made a mistae
that his attorey allegedly thought the application was due on October 27, 2010, the
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Respondent's next hearing date, instead of October 13, 2010, the date set on the record by
the Cour. 2 While the Court is sympathetic to the Respondent he has not shown, or even
suggested, that the Cour's decision was defctive.
3
B. Motion to Reopen
To the extent that the present Motion is a motion to reopen, 8 C.F.R.
1003.23(b)(3) precludes the Court fom reopening the proceedings. The Court flly
affrded the Respondent an opportunity to apply fr adjustment of status. See id While
the 1-130 Petition was approved afer the Court's order, the Court had permitted the
Respondent to apply fr Adjustment of Status as he awaited the 1-130 Petition's approval.
That the I-130 was approved afer the Court's order does not afect whether the
Respondent had the opportunity to apply fr adjustment of status befre the Court.
In addition, while the Respondent argues that his attorey's mistake precluded
him fom submitting his application in a timely manner, the Respondent has not alleged
inefective assistance of counsel.
Finally, the Court fnds that this case does not present a truly exceptional
situation, where the interests of justice would demand a reopening of the proceedings.
CONCLUSION
Accordingly, the fllowing order will be entered.
Notably, the Respondent has not alleged inefective assistance of counsel.
Wile the Cour is not obligated to defend its prior decision, as noted in its decision dated October 25,
2010, 8 C.F.R. 1003.3 l(c) is a mandator regulation, and provides that a Court shal deem an application
abandoned if the Cour's fling date fr that application is not met.
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