Summary
The United States Court of Appeals for the Seventh Circuit denied Souleymane Nimaga’s petition for review of the Board of Immigration Appeals’ decision declining to reopen his immigration proceedings and rescind an in absentia removal order. The court held that the financial hardship caused by a burglary and the failure of arranged transportation did not constitute exceptional circumstances under 8 U.S.C. § 1229a(b)(5)(C)(i), particularly because Nimaga did not timely notify the Immigration Court of his inability to attend. The court postponed issuance of the mandate pending supplemental memoranda concerning Nimaga’s U visa efforts.
Topics
Practice areas
Questions Presented
- Whether the Board of Immigration Appeals abused its discretion in affirming the denial of Nimaga's timely motion to reopen and rescind his in absentia removal order.
- Whether Nimaga established that exceptional circumstances beyond his control caused his failure to appear at the Immigration Court hearing under 8 U.S.C. § 1229a(b)(5)(C)(i).
Holdings
- When a petitioner received proper notice, is otherwise removable, and timely moves to reopen, an in absentia removal order may be rescinded only upon a showing that the failure to appear was caused by exceptional circumstances beyond the petitioner's control.
- Nimaga did not establish exceptional circumstances because, although the burglary and loss of transportation were beyond his control and financially devastating, he had the ability and obligation to contact the Immigration Court or former counsel to report that he could not attend.
Key quotations
“The petitioner thus bears the burden of making three key showings: (1) that circumstances beyond his control; (2) caused his absence from the hearing; (3) and that these circumstances were exceptional, i.e., they were as compelling as battery or extreme cruelty to himself, his child, or parent; serious illness of the petitioner; or the serious illness or death of a spouse, child, or parent of the petitioner.” (6)
“To sum up: Obstacles to a petitioner’s timely attendance at a hearing that are foreseeable (encountering traffic delays or parking difficulties), mundane (non-severe illness) or in some way attributable to the petitioner himself (misunderstandings about the hearing date or time) will likely not qualify as exceptional circumstances, whereas obstacles that were truly unexpected and beyond the control of the petitioner (Nazarova) may so qualify.” (10)
“But given that Nimaga did have the means to contact the Immigration Court on the day of the hearing to report his predicament and failed to do so, we cannot say that it was an abuse of discretion for the Immigration Judge and the Board to find that the difficulties confronting Nimaga were not exceptional.” (13)
Factual background
Nimaga, a native of Ivory Coast and citizen of Mali, was placed in removal proceedings after conceding allegations concerning his failure to maintain a full course of study. While his case was pending, he applied for a U visa and for cancellation of removal and adjustment of status based on domestic-violence victimization. Shortly before his scheduled hearing, his work authorization expired, a burglary deprived him of approximately $2,200, and his planned transportation from Indianapolis to Chicago fell through on the day of the hearing. He could not attend and did not successfully contact the Immigration Court before or during the hearing, resulting in an in absentia removal order.
Procedural history
Nimaga failed to appear at an October 1, 2019, Immigration Court hearing, and the Immigration Judge ordered him removed in absentia. The Immigration Judge denied Nimaga's timely motion to reopen, concluding that he had not shown exceptional circumstances for his absence. The Board of Immigration Appeals dismissed his appeal on September 24, 2020, and the Seventh Circuit denied the petition for review.
Remand instructions
The parties must file supplemental memoranda by May 29, 2026, concerning the status of Nimaga's U-visa efforts and what steps, if any, the Seventh Circuit or the Board should take. Issuance of the mandate is postponed pending review of those submissions and further order.