Rudolph, James B., Esq. Rudolph, B;iker & Associates 419 19th Street San Diego, CA 92102

Name: ORAHA, OSAMA MIKHO

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

.5 l 07 Leesburg Pike, Suite 2000 Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel • PHO P.O. Box 25158 Phoenix, AZ 85002

A 096-742-979

Date of this notice: 12/10/2012

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

Enclosure

Panel Members: Manuel, Elise L.

Sincerely,

Don.rtL C! tlAA) Donna Carr Chief Clerk

Userteam: Docket

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Cite as: Osama Mikho Oraha, A096 742 979 (BIA Dec. 10, 2012)

U.S. Department of Justice Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A096 742 979 - Phoenix, AZ

In re: OSAMA MIKHO ORAHA

IN REMOVAL PROCEEDINGS

APPEAL

Decision of the Board of Immigration Appeals

Date: DEC 10 20JZ

ON BEHALF OF RESPONDENT: James B. Rudolph, Esquire

ON BEHALF OF DHS: Brent Landis Assistant Chief Counsel

APPLICATION: Motion to reopen

The respondent, a native of Iraq and citizen of Canada, appeals from the January 28, 2011, decision of an Immigration Judge, denying his motion to reopen in order to pursue adjustment of status. The record will be remanded to the Immigration Judge for further proceedings and the entry of a new decision.

The Board reviews findings of fact by an Immigration Judge only to determine whether they are clearly erroneous. 8 C.F .R. § 1 003.1( d)(3)(i); Matter ofS-H-, 23 I&N Dec. 462, 464-65 (BIA 2002). 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); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).

The respondent entered the United States on October 3, 2004, as a non-immigrant "F-1" student. He remained in the United States beyond his period of authorization or after January 11, 2005. On May 18, 2005, he married Ms. Kimberly Walker, a United States citizen. During the marital interview in February of 2006, Ms. Walker admitted that she had married the respondent for the sole purpose of helping him become a lawful permanent resident. On October 4, 2006, a Notice to Appear was filed. On February 12, 2008, an Immigration Judge found that his application for adjustment of status had been abandoned but allowed him the privilege of voluntarily departing the United States. The respondent appealed. During the pendency of the appeal, the respondent departed the United States and the decision of the Immigration Judge became final, as though no appeal had been taken. On January 14, 2011, the respondent filed a motion to reopen. The motion was denied by the Immigration Judge and is the subject of this appeal.

The record shall be remanded for further proceedings and the entry of a new decision by the Immigration Judge. Jn seeking reopening, the respondent conceded that the motion was untimely.

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Cite as: Osama Mikho Oraha, A096 742 979 (BIA Dec. 10, 2012)

A096 742 979

However, he contended that the actions of his attorney at the time of his hearing, Mr. Chukwuma A. Obiesie, were ineffective and that the time limits for filing a motion to reopen, therefore, ought to be tolled based on this due process violation. He explains that he filed to reopen soon after it became apparent to him that attorney Obiesie had been ineffective and this was revealed on November 1, 2010, when he met with his current attorney to discuss his case. 1 The motion filed before the Immigration Judge included, among other things, a statement from the respondent signed under penalty of perjury and a response from attorney Obiesie as to the allegation of ineffective assistance of counsel made against him. 2 In spite of the respondent's specific grollllds seeking equitable tolling and his supporting evidence, the Immigration Judge's decision consisted of two sentences, denying the motion and finding it to be lllltimely.

In consideration of the respondent's specific claim of ineffective assistance of counsel in the motion to reopen and the absence of any factual findings by the Immigration Judge as to it, we

cannot conduct a proper appellate review. See 8 C.F.R. § 1003.l{d)(3)(iv) (stating that the Board may not engage in fact finding in the course of deciding appeals except for taking administrative notice of commonly known facts). Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002) (in light of Board's limited fact-finding ability on appeal, a remand is appropriate when the record is inadequate for review). Accordingly, a remand is warranted for further proceedings. Upon remand, the Inunigration Judge shall entertain the respondent's ineffective assistance of cotlllsel claim and enter explicit findings of fact as to whether the respondent has proven equitable tolling to excuse his untimely motion to reopen and if so, whether reopening is warranted as a matter of law and discretion.

Accordingly, the following order will be entered.

ORDER: The record is remanded for further proceedings and the entry of a new decision consistent with this decision.

FOR THE BOARD

1 The record reflects that on October 23, 2010, the respondent married Ms. Ignacia Vazquez.

2 The government also filed an 8-page brief which was responsive to the respondent's claim of ineffective assistance of counsel.

2

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Cite as: Osama Mikho Oraha, A096 742 979 (BIA Dec. 10, 2012)

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MALEK TINA N ESQ. 41.9 l9TH STREET SAN DIEGO, CA 92102

IN THE MATTER OF ORAHA, OSAMA MIKHO

( -) .......... .

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT 200 E. MITCHELL DR., SUITE 200

PHOi!.m:x, AZ 35()12

FILE A 096-742-979 DATE: Jan 28, 2011

UNAHLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHIID IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF T!lE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST MU� BE MAILED TO: BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHuRCH, VA . 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),, 8 u.s:c. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION TO REOPEN, YOUR. MOTION MUST BE FILED WITH THIS COURT:

CC: GOLPARVAR, KUIOJi!ARS

IMMIGRATION COURT 200 E. MITCHELL DR., SUITE 200 PHOENIX, AZ 85012

IMMIGRATION COURT

2035 N. CENTRAL AVE., 2ND FL. PHOENIX, AZ, 850040000

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. UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR lMMiGRATION REVIEW

· OFFICE OF THE IMMIGRATION JUDGE " PHOENIX, ARIZONA

II .. �'.

-,..fNTHE MATTER OF OsamaOraba A#96 742 979 IN REMOVAL PROCEEDINGS

·On Behalf of' the Respondent:

Tina Malek, Esq. 419 1 g<h Street

, San Diego, California 92102

On.Behalf of the D.H.S.: ......

· .Qi stfict Counsel � N. Central Ave.

· ' Phoenix, Arizl'lna 85004 ' , HI

ORDER

The Respondent's Motion To Reopen is denied. The motion is: untimely filed. ·

. . -''."· ·. _;. ·-. ;' " · ·"ltJS.SO ORDERED.

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Dated this 28th day of January, 201 I

LA.£!.�"--United States Immigration Judge

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