Walter Kimani v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WALTER KANIARU KIMANI, No. 14-71808
Petitioner, Agency No. A089-696-920
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2016**
Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.
Walter Kaniaru Kimani, a native and citizen of Kenya, petitions for review
of the Board of Immigration Appeals’ order affirming an immigration judge’s
order denying his motion to reopen removal proceedings conducted in absentia.
We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.
2005). We grant the petition for review and remand.
The agency abused its discretion in denying Kimani’s motion to reopen
based on exceptional circumstances, where Kimani demonstrated that an attorney’s
statements led him to believe that an attorney-client relationship existed between
them, that the attorney would attend his hearing on March 6, 2012, and that Kimani
was not required to attend the hearing. See 8 C.F.R. § 1003.23(b)(4)(ii) (“An order
of removal entered in absentia . . . may be rescinded only upon a motion to reopen
filed within 180 days after the date of the order of removal, if the alien
demonstrates that the failure to appear was because of exceptional
circumstances[.]”).
We remand for the agency to determine whether Kimani is entitled to
equitable tolling of the 180-day filing deadline. See id; Avagyan v. Holder, 646
F.3d 672, 679-80 (9th Cir. 2011) (equitable tolling is available to an alien who is
prevented from timely filing a motion to reopen). We note that Kimani provided
evidence to the agency that a month after being ordered removed in absentia, he
retained a lawyer to file a motion to reopen, but the attorney failed to file the
motion.
In light of this disposition, we do not reach Kimani’s remaining contentions.
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We grant Kimani’s motion (Docket Entry No. 14) to withdraw his motion
for judicial notice (Docket Entry No. 8), and deny his motion for a stay of
proceedings (Docket Entry No. 36).
PETITION FOR REVIEW GRANTED; REMANDED.
3 14-71808