U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Qffice of the Clerk
5107 Leesburg Pike. Suile 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - CLE

1240 E. 9th St.,Room 585
Cleveland, OH 44199

Name:KOSSCHUK,RAYMOND

A 072-858-139

Date of this notice: 10/26/2016

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

DGnltL ct1/VL)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Neal, David L
Mann, Ana
O'Connor, Blair

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Raymond Kosschuk, A072 858 139 (BIA Oct. 26, 2016)

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KOSSCHUK,RAYMOND
A072-858-139
c/o CLAY COUNTY SHERIFF
611 E. JACKSON STREET
BRAZIL, IN 47834

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review
Falls Church, Virginia 22041

Date:

File: A072 858 139- Cleveland, OH

In re: RAYMOND N. KOSSCHUK

OCT 2 6 2016

APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF DHS: Amy L. Scheunnan
Assistant Chief Counsel
APPLICATION: Reopening
The respondent, a native and citizen of the United Kingdom, was ordered removed in
absentia on June 11, 2014. On July 8, 2014, the respondent filed a motion to reopen proceedings,
which an Immigration Judge denied on April 9, 2015. The respondent filed a timely appeal of
that decision. The appeal will be sustained, the Immigration Judge's order will be vacated,
proceedings will be reopened and the record will be remanded.
The Board reviews an Immigration Judge's findings of fact under the clearly erroneous
standard. 8 C.F.R. 1003.l(d)(3)(i). The Board reviews questions of law, discretion, and
judgment and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R.
1003.l(d)(3)(ii).
Upon de novo review of the record and in light of the totality of circumstances presented in
this case, we conclude that the respondent has demonstrated that reopening is warranted. 1 See
sections 240(b)(5)(C)(i), (e)(l) of the Immigration and Nationality Act, 8 U.S.C.
1229a(b)(5)(C)(i), (e)(l). We will therefore sustain the respondent's appeal and remand the
record for further proceedings.
ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings
are reopened and the record is remanded to the Immigration Judge for further proceedings and
for the entry of a new decision.

FOR THE BOARD

1

Among other factors, we have considered the respondent's attendance at 10 prior hearings, the
respondent's diligence in obtaining counsel and filing his motion to reopen proceedings, the fact
that the respondent's nonappearance was due to an inadvertent mistake regarding the date and
not an attempt to avoid proceedings, and that the respondent appears to have several potential
avenues for relief from removal.
Cite as: Raymond Kosschuk, A072 858 139 (BIA Oct. 26, 2016)

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

IN REMOVAL PROCEEDINGS

I-

DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE- FOR IMMIGRATION REVIEW
IMMIGRATION COURT
801 WEST SUPERIOR AVENUE, SUITE 13-100
CLEVELAND, OH 44113

Raymond KOSSCHUK,

Respondent.
File Number: A072-858-139
RE:

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)
)
)
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Date:

APR - 9 2015

In Removal Proceedings

Docket: Cleveland Non-Detained (CEL)

The Respondent's Motion to Reopen

ON BEHALF OF RESPONDENT:
Jonathan Aaron Bartell, Esq.
Law Offices of Jonathan A. Bartell

LV

&iite 2

h10

ON BEHALF OF THE DHS:

Victoria Christian, Deputy Chief Counsel
Office of the Chief Counsel
Immigration & Customs Enforcement
1240 East Ninth Street, Suite 519
Cleveland, Ohio 44199

120 YY\S-no'f Ave. t '600

Ct evend PH- l\4l B ME"MoRANnuM AND oRDER

The Respondent is a citizen and national of the United Kingdom. On March 28, 2011, the
Department of Homeland Security ("DHS") issued a Notice to Appear ("NTA"), charging the
Respondent with removability under the Immigration and Nationality Act ("INA")
237(a)(l)(D)(i) (lawful permanent resident status terminated). The Respondent has previously
conceded factual allegations one, two, three, and four on his NTA. The Court previously
sustained factual allegation five and the charge of removability.
On February 19, 2014, the Court personally served the Respondent with a hearing notice,
informing him of his individual hearing scheduled for June 11, 2014. When the Respondent
failed to appear for that hearing, the Court ordered him removed in absentia. On July 8, 2014,
the Respondent filed a motion to reopen. The DHS has not filed a response.
For the reasons set forth below, the Court will DENY his motion to reopen.
DISCUSSION

INA 240(b)(5)(C)(i) provides for the reopening of an in absentia removal order if exceptional
circumstances precluded the respondent from appearing at the hearing, and the motion is filed
within 180 days of the date of the removal order. Under INA 240(e), exceptional
circumstances are defined as circumstances "beyond the control of the alien," such as battery,
Order A072-858-139

Page 1 of2

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In The Matter Of:

extreme cruelty, serious illness, and death involving the alien or immediate family, "but not
including less compelling circumstances." The BIA employs a "totality of the circumstances"
test to determine exceptional circumstances. Matter of W-F-, 21 l&N Dec. 503, 509 (BIA 1996).

The Court does not believe that the circumstances described rise to the level of exceptional
circumstances needed to reopen removal proceedings. Specifically, the Respondent was
personally served with written notice of his hearing date on February 19, 2014. It is not
unreasonable to expect the Respondent to accurately determine the contents of such a document.
Thus, the Respondent has not demonstrated that his failure to appear was due to circumstances
beyond his control.
The Respondent has maintained contact with the Court by appearing for prior hearings; he also
promptly filed his motion to reopen after being notified of the in absentia order of removal.
These are factors that weigh in favor of reopening. See Matter of B-A-S-, 22 I&N Dec. 57, 59
(BIA 1998). However, the Court does not find these factors to outweigh the Respondent's
failure to take reasonable action in determining the date of his hearing.
ORDERS

Accordingly, it is hereby ordered that:

1.

The Respondent's Motion to Reopen is DENIED.

2.

The Respondent shall be REMOVED to the United Kingdom.

So ordered.
Date:

APR -

g 1015

Order A072-858-139

Page2 of2

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In his motion to reopen, the Respondent states that he was confused about the date of his hearing
as contained in the hearing notice, believing it to be July 11, 2014, which caused his failure to
appear on June 11, 2014. Resp't Mot. at 3. The Respondent asserts that he mistakenly relied on
an old hearing notice ordering him to appear on July 11, 2012. Id. However, "the weight of
authority generally [] holds that a mistaken belief as to the correct hearing date does not rise to
the level of being an exceptional circumstance." Acquaah v. Holder, 589 F.3d 332, 336 (6th Cir.
2009).