Avtandil Kundukhashvili v. Merrick B. Garland

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 3, 2022 *
Decided August 11, 2022
Before
DIANE S. SYKES, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-2336
AVTANDIL KUNDUKHASHVILI, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A098-528-031
MERRICK B. GARLAND,
Attorney General of the United States,
Respondent.
ORDER
After Avtandil Kundukhashvili, a Georgian citizen, did not appear at his
removal hearing, the immigration judge (“IJ”) ordered that he be removed in absentia.
Kundukhashvili moved to reopen the proceedings, arguing that he missed the hearing
*We previously granted the respondent’s motion to waive oral argument
because the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 21-2336 Page 2
because of an unspecified illness. The IJ concluded that Kundukhashvili did not
establish that his illness amounted to an exceptional circumstance under 8 U.S.C.
§ 1229a(b)(5)(C)(i) and denied the motion. The Board of Immigration Appeals affirmed.
Because the Board did not abuse its discretion, we deny Kundukhashvili’s petition for
review.
Kundukhashvili came to the United States via Canada without inspection in
2004. (Canada had previously denied his application for political asylum.) Soon after
arriving in the United States, Kundukhashvili applied for asylum and withholding of
removal based on his Georgian nationality—specifically, his Ossetian ethnicity.
In 2005 the Department of Homeland Security served a notice to appear upon
Kundukhashvili and charged him with being removable under the Immigration and
Nationality Act on the ground that he had not been admitted or paroled into the United
States. See 8 U.S.C. § 1182(a)(6)(A)(i). Kundukhashvili did not appear at the hearing, and
the IJ ordered him removed in absentia. Six months later Kundukhashvili moved to
reopen the proceedings for failure to receive notice of the hearing date. The IJ granted
the motion. Over the next decade, his hearing was rescheduled many times but
eventually was set for January 2018. However, Kundukhashvili also failed to appear at
this hearing, and the IJ again ordered him removed in absentia.
Under § 1229a(b)(5)(C)(i), an in absentia removal order may be rescinded “upon
a motion 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.” Two
days before that 180-day deadline lapsed, Kundukhashvili moved to reopen the
proceedings based on an illness that he said prevented him from attending the hearing.
In support he submitted an affidavit asserting that he was “very sick” the week of the
hearing and did not go to the hospital because he “tr[ies] to avoid the doctor unless [it]
is a life or death case.” Kundukhashvili added without elaboration that he was not able
to contact his attorney and that an “absentminded mistake”—not giving his updated
phone number and address to his attorney—prevented the attorney from contacting
him. The IJ denied Kundukhashvili’s motion to reopen, stating that he “ha[d] not
established exceptional circumstances[] or that he [had] failed to receive proper notice.”
Kundukhashvili appealed to the Board of Immigration Appeals and reiterated
that he could not appear because of “his medical condition” and “communication
issues” with counsel. The Board upheld the denial of reopening and agreed with the IJ
that Kundukhashvili had not established exceptional circumstances:
No. 21-2336 Page 3
Accepting that the respondent would not have a doctor’s note to submit
into evidence, he still did not submit supporting documentation to
establish that he could not attend his hearing due to illness. There were no
third party statements or other evidence of his illness. Significantly, his
own affidavit did not even describe his illness. Additionally, the
respondent made no claim of trying to notify the Immigration Court that
he was ill, and he did not explain what steps he took to try to obtain advice
from his attorney. Instead, the respondent’s motion was vague and
insufficient to establish exceptional circumstances. Furthermore, the
respondent’s motion to reopen was filed at the very end of the 180-day
period for filing motions to reopen in absentia proceedings based on
extraordinary circumstances.
Kundukhashvili timely petitioned for review. On appeal he argues that the IJ and
the Board erred because his illness created “exceptional circumstances” that warranted
reopening his proceedings. § 1229a(b)(5)(C)(i). His analysis is barebones, and we
reproduce it here in its entirety:
The Respondent failed to appear in his last hearing due to his illness. His
illness not only prevented him [from] going to a doctor but also contacting
his attorney or the court. His inability of informing his attorneys or the court
speaks [to] the severity of his mental and physical sickness, whatever it was.
Furthermore, the Respondent had appeared at all previously scheduled
hearings. Therefore, the totality of the circumstances in this case supports
the claim of the Respondent that his motion to reopen warranted a
favorable decision.
We review only the Board’s decision because the Board expanded upon the IJ’s analysis.
See Kone v. Holder, 620 F.3d 760, 763 (7th Cir. 2010).
Under the Immigration and Nationality Act, an order of removal in absentia may
be rescinded upon a motion to reopen, filed within 180 days of the order, if the
petitioner demonstrates that “exceptional circumstances” caused the failure to appear.
No. 21-2336 Page 4
See § 1229a(b)(5)(C)(i); Vyloha v. Barr, 929 F.3d 812, 816 (7th Cir. 2019). 1 “Exceptional
circumstances” are those beyond the petitioner’s control, including “serious illness” to
the petitioner “but not including less compelling circumstances.” 8 U.S.C. § 1229a(e)(1).
We review the denial of a motion to reopen for an abuse of discretion, see Singh v.
Sessions, 898 F.3d 720, 724 (7th Cir. 2018), and here the Board appropriately exercised its
discretion to deny the motion. As the Board explained, the evidence offered by
Kundukhashvili did not establish exceptional circumstances for his failure to appear at
his removal hearing. See Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir. 2008)
(upholding the denial of a motion to reopen based on exceptional circumstances where
the petitioner said that he suffered from a “‘viral illness’ that disoriented him” but “did
not even describe the symptoms that he suffered or explain why his illness prevented
him from attending the hearing”); Kay v. Ashcroft, 387 F.3d 664, 671 (7th Cir. 2004)
(same, where the petitioner “fail[ed] to explain how his PTSD prevented him from
attending the … hearing”); Ursachi v. I.N.S., 296 F.3d 592, 594 (7th Cir. 2002) (same,
where the petitioner provided a personal affidavit and a doctor’s note, but neither
included “any detail regarding the cause or severity of [his] illness”); see also Celis-
Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002) (affirming the Board’s decision
because the petitioner did not present enough evidence to compel a finding that his
asthma attack was an exceptional circumstance); Lonyem v. U.S. Att’y. Gen., 352 F.3d
1338, 1341 (11th Cir. 2003) (same, because the petitioner did not indicate any effort to
contact the immigration court and the IJ found that his attached affidavit was not
credible). The Board reasonably highlighted Kundukhashvili’s failure to introduce
third-party statements or other evidence of his illness—an illness that Kundukhashvili
has yet to identify beyond saying that it “prevented him [from] going to a doctor” and
“contacting his attorney or the court.”
Kundukhashvili’s only other argument is that he “had appeared at all previously
scheduled hearings.” But this misstates the facts; he also missed his 2005 removal
hearing, which was held in absentia. Regardless, his attendance at any prior hearing is
irrelevant to whether he established that his illness was sufficiently serious to constitute
an extraordinary circumstance.
An order of removal in absentia may also be rescinded if the petitioner can
1
demonstrate that he received improper notice, see 8 U.S.C. § 1229a(b)(5)(C)(ii), but
Kundukhashvili does not suggest that his notice of the 2018 hearing was in any way
improper.
No. 21-2336 Page 5
Therefore, we DENY Kundukhashvili’s petition for review.