Vincent Angaya v. Jefferson B. Sessions, III
701 F. App'x 522
| 8th Cir. | 2017Background
- Vincent Angaya, a Kenyan national, conceded removability and applied for asylum; DHS placed him in removal proceedings in 2010.
- In May 2013 a telephonic hearing set an individual hearing for September 2014; Angaya moved and did not update his address or adequately communicate with counsel or the court.
- Angaya's counsel withdrew in April 2014, stating Angaya was uncooperative and that the counsel had attempted to notify him of the hearing by phone, certified mail, and e-mail.
- Angaya failed to appear at the September 2014 hearing and was ordered removed in absentia; he later obtained new counsel and timely moved to reopen, claiming exceptional circumstances.
- The IJ denied the motion to reopen; the BIA dismissed the appeal; Angaya petitioned for review in this court, which denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government’s failure to argue lack of exceptional circumstances waived the issue or violated due process | Angaya: government failed to contest lack of exceptional circumstances so issue should be deemed waived and BIA’s review violated due process | Government: burden to show exceptional circumstances rests with petitioner; no waiver or concession relieving that burden | Court: No waiver; BIA properly reviewed whether Angaya met his burden; no due process violation |
| Whether Angaya demonstrated "exceptional circumstances" excusing his failure to appear | Angaya: counsel’s withdrawal and notice being sent to his prior address constitute exceptional circumstances | Government: Angaya’s failure to update address and communicate caused the missed notice; such conduct is not "beyond the control" of the alien | Court: Angaya failed to show exceptional circumstances; his lack of communication is not beyond his control, so reopening was properly denied |
Key Cases Cited
- Diaz v. Lynch, 824 F.3d 758 (8th Cir. 2016) (standard of review for motions to reopen)
- Haider v. Gonzales, 438 F.3d 902 (8th Cir. 2006) (abuse of discretion standard explained)
- Krasnopivtsev v. Ashcroft, 382 F.3d 832 (8th Cir. 2004) (review when BIA adopts IJ’s opinion)
- Kasyupa v. Keisler, [citation="252 F. App'x 106"] (8th Cir. 2007) (failure to update address forecloses exceptional-circumstances claim)