Walter Kimani v. Loretta E. Lynch

MEMORANDUM

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 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 may be rescinded only upon a motion to reopen filed within 180 days after the date of the order of removal, if the alien demonstrates that the failure to appear was because of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…