U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - LOU

80 Monroe Ave., Suite 502
Memphis, TN 38103

Name: RAFATI, ALA ABDEL MUHSEN

A 087-969-447
Date of this notice: 12/22/2016

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

bowu.., Ca.AAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Adkins-Blanch, Charles K.
Mann, Ana

Userteam: Docket

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Cite as: Ala Abdel Muhsen Rafati, A087 969 447 (BIA Dec. 22, 2016)

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Ahmad, Wael M.
Ahmad Law Office, PLLC
333 West Vine St. Suite 400
Lexington, KY 40507

U.S.DepartmentofJustice
Executn:e Office for lmmigmtion Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia22041

File: A087 969 447-Louisville, KY1

Date:

ln re: ALAABDELMUHSENRAFATI

DEC 2 2 2016

APPEAL
ON BEHALF OF RESPONDENT: Wael M. Ahmad, Esquire
ON BEHALF OF DHS: William A Lund
Assistant Chief Counsel
APPLICATION: Reopening
The respondent has appealed the Immigration Judge's May 16, 2016, decision that denied the
respondent's motion to reopen proceedings in which he was ordered removed in absentia. The
appeal will be sustained and the record will be remanded.
We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R
1003.l(d)(J)(i), (ii).
We find that there is an issue as to whether the respondent received proper notice of the
April 6, 2015, hearing. The Immigration Judge denied the respondent's motion, in significant
part, because notice was provided to the respondent's attorney of record. See Matter ofBarocio,
19 I&N Dec. 255 (BIA 1985) (holding that notice to an alien's counsel constitutes notice to the
alien). However, there is no Notice of Entry of Appearance as Attorney or Representative (Form
EOIR-28) in the record of proceeding, as required by_ regulation. See 8 C.F.R 1292.4(a).
Under these circumstances, we cannot find that notice of hearing to counsel constituted notice to
the respondent. See 8 C.F.R 1292.S(a). In light of these facts, we will allow the respondent
another opportunity to appear for a hearing.
Accordingly, the following orders shall be entered.
ORDER: The appeal is sustained, and the in absentia removal order is rescinded.

Proceedings before the Immigration Judge in this matter were completed in Louisville,
Kentucky where the case was docketed for hearing (see OPPM No. 04-06). The Immigration
Judge conducted the hearings there remotely from the Memphis Immigration Court, via video
teleconference pursuant to section 240(b)(2)(A)(iii) of the Immigration and Nationality Act,
8 U.S.C. 1229a(b)(2)(A)(iii).
Cite as: Ala Abdel Muhsen Rafati, A087 969 447 (BIA Dec. 22, 2016)

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

IN REMOVAL PROCEEDINGS

A087 969 447

FURTHER ORDER: The proceedings are reopened, and the record is remanded to the
Immigration Court for further proceedings consistent with the foregoing opinion and the entry of
a new decision.

2
Cite as: Ala Abdel Muhsen Rafati, A087 969 447 (BIA Dec. 22, 2016)

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

FOR THEBO


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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MEMPHIS TENNESSEE
IN REMOVAL PROCEEDINGS

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RAFATI, Ala Abdel Muhsen

Respondent

FILE NO.:

A 087-969-447

DATE:

May

Jt,, 2016

Decision reissued due to Court error

CHARGE:

Section 237(a)(l )(C)(i) of the Act, in that after admission as a

nonimmigrant under Section I01(a)( l5) of the Act, you failed to
maintain or. comply with the conditions of the nonimmigrant status
under which you were admitted.

APPLICATIONS:

Motion to Reopen an In Absentia Order and Request for Stay of

Removal
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DECISION OF IMMIGRATION JUDGE

ON BEHALF OF RESPONDENT:
WaelM.Ahrnad,Esq.
Ahmad Law Office,PLLC
333 W. Vine St.,Suite 400
Louisville, Kentucky 40507

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PROCEDURAL HISTORY

The Department of Homeland Security (''the Department") initiated the present removal
proceedings against Respondent on November 3, 2011, alleging that he is removable from the
United States pursuant to Section 237(a)(l)(C)(i) of the Immigration and Nationality Act ("INA"
or "the Act"). Exh. 1.
Respondent was personally served with a Notice to Appear ("NTA") on October 18,
2011, which scheduled him to appear before the Chicago Immigration Court at a date and time to
be set. Id Upon being released from the Department's custody, Respondent listed his address in
Lexington, Kentucky. Therefore, on October 31, 2011, Respondent was mailed a Notice of
Change of Address for Immigration Court notifying him that his case had been transferred to the
jurisdiction of theMemphis Immigration Court.
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IN THE MATTER OF

At Respondent's December 2, 2013 hearing, Respondent appeared with counsel and was
granted additional time to allow for adjudication of Respondent's pending 1-130 application, thus
his Master Calendar hearing was reset for April 6, 2015. On April 6, 2015, Respondent's
counsel appeared, but Respondent was absent and consequently ordered removed in absentia.
On January 4, 2016, Respondent filed a Motion to Reopen an in Absentia Order and
Request for Stay of Removal. The Department filed its response, opposing Respondent's
Motion, on December 31, 2015. The Court now issues this decision.
II.

DISCUSSION

According to the Immigration and Nationality Act (INA), as well as federal regulations,
an order of removal entered in absentia pursuant to INA 240(b)(5)(A) may be rescinded upon a
motion to reopen filed either: (i) within 180 days after the date of the order of removal if the
alien shows that the failure to appear was due to exceptional circumstances; or (ii) at any time if
the alien demonstrates that he or she did not receive notice in accordance with INA 239(a)(l)
or (a)(2). INA 240(b)(5)(C); 8 C.F.R.I003.23(b)(4)(ii) (2016). The filing of said motion shall
stay the removal of the alien pending disposition of the motion by the Immigration Judge. INA
240(b)(5)(C); 8 C.F.R. 1003.23(b)(4)(ii). An alien may only file one such motion to reopen. 8
C.F.R.1003.23(b)(4)(ii).
Respondent argues that his removal proceedings should be reopened because he "did not
receive proper notice of his hearing." Respondent's Motion to Reopen at 2. However,
Respondent appeared at his December 2, 2013 hearing with counsel through tele-video; at this
hearing, the Immigration Judge explicitly stated that Respondent's case was being reset for April
6, 2015. Therefore, Respondent had actual notice of his hearing. In his Motion, Respondent
does not argue that the Court failed to issue proper notice in his case, only that his attorney failed
to properly notify him of the hearing. Therefore, the Court will examine Respondent's Motion to
Reopen under the exceptional circumstances analysis. When filing a Motion to Reopen based on
exceptional circumstances, Respondent must file within 180 days after the date of the order of
removal. In this case, Respondent was ordered removed on April 6, 2015, but did not file a
Motion to Reopen until January 4, 2016. More than 180 days have passed between
Respondent's final order of removal and the time he filed his Motion to Reopen, therefore
Respondent is now time barred from filing such a Motion.
In his affidavit, Respondent asserts that he did not receive notice of his April 6, 2015
hearing. Respondent's Motion to Reopen at Exh. A at ,r 4. Respondent explains that his
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On December 28, 2011, Respondent was mailed a Notice of Hearing for a Master
Calendar hearing scheduled for October 15, 2012. On October 15, 2012, Respondent, through
counsel, appeared before the Court and acknowledged proper service of the NTA, admitted the
factual allegations contained in the NTA, and conceded the charge of removability.
Respondent's Master Calendar hearing was then reset for December 2, 2013 to allow time for
Respondent to file an 1-130 application.

'

'

The Sixth Circuit Court of Appeals recently published a decision pertaining to

constructive notice of an alien through service of alien's counsel. In Cruz-Gomez v. Lynch, the
Sixth Circuit held that only "in certain cases, personal service to a represented alien's counsel
may constitute personal service to the alien." Cruz-Gomez v. Lynch, 801 F.3d 695,701 (6th Cir.
2015). In that case, the Respondent had appeared before the Immigration Court once with
counsel,and when his case was reset for anotherMaster Calendar hearing,Respondent's counsel
was personally served and Respondent was told the date. Cruz-Gomez v. Lynch, 801 F.3d at 698.
Respondent and his counsel subsequently failed to appear for the second hearing, and
Respondent was ordered removed in absentia. The Sixth Circuit found constructive notice of
Respondent based on "common sense and the traditional principle that a party is considered to
have notice of all facts,notice of which can be charged upon the attorney" while "respecting the
INA's expressed preference for personal service where practicable." Id. at 700 (internal
quotations omitted; citing Link v. Wabash R.R. Co., 370 U.S. 626, 634 (1962)). Similarly,
Respondent in this case can be charged with constructive notice of his April 6, 2015 Master
Calendar hearing. Respondent appeared with counsel at two Master Calendar hearings before he
missed his third hearing, he was told of his next hearing date by the Immigration Judge, and
notice of hearing was mailed to Respondent's counsel of record because Respondent appeared
with counsel via tele-video from Louisville,Kentucky before the Memphis Immigration Court.
Therefore,the Court finds that Respondent in this case may be charged with constructive notice
of his April 6,2015Master Calendar hearing.
Additionally, Respondent's counsel appeared at the April 6, 2015 Master Calendar
hearing without Respondent, explaining that he mailed Respondent notice of the hearing and
reached out to Respondent, but was unable to get in touch with him. The Court cannot find
insufficient notice simply because Respondent failed to maintain contact with his former
attorney. If Respondent wanted to assert an ineffective assistance of counsel claim against his
former attorney, he should have complied with the Lozada procedural requirements. However,
Respondent does not directly assert an ineffective assistance of counsel claim nor does he
comply with the requirements set out in Lozada.
In conclusion,Respondent's Motion to Reopen was not timely filed,Respondent received
proper notice of his April 6, 2015 Master Calendar hearing, and Respondent failed to file a

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previous attorney told him that his case was continued until 2015 but did not give him a specific
date. Id. Respondent claims that his attorney told him that he would be in contact but
Respondent never heard from him. Id. Respondent's affidavit asserts that he found out about his
removal order while preparing to file an 1-130 petition, as he is married to a United States
citizen. However, Respondent failed to provide any evidence of his marriage despite the
Regulations explicitly providing that "[a]ny motion to reopen for the purpose of acting on an
application for relief must be accompanied by the appropriate application for relief and all
supporting documents." 8 C.F.R. 1003.23(b)(3) (2016). In response, the Department argues
that Respondent failed to show he did not receive notice of his hearing since his attorney
appeared at the hearing and represented to the Court that he notified Respondent of the hearing
but did not know his whereabouts. The Department's Response to Respondent's Motion to
Reopen at 3.

proper ineffective assistance of counsel claim. For these reasons, Respondent's Motion to
Reopen will be denied.
III.

CONCLUSION

It is HEREBY ORDERED that Respondent'sMotion to Reopen an in Absentia Order

and Request for Stay of Removal be DENIED.
DATED this the \ay ofMay 2016.

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For the foregoing reasons,the following ORDER is HEREBY ENTERED: