Souleymane Nimaga, a citizen of Mali and native of Ivory Coast, entered the United States in 2000 as a student. In 2010, the Department of Homeland Security initiated removal proceedings against him for failing to maintain his student status. Nimaga admitted his removability but sought relief through a U visa and cancellation of removal as a victim of domestic violence. His case was scheduled for a hearing in Chicago on October 1, 2019. Prior to the hearing, Nimaga's work authorization expired, and he was the victim of a burglary that stole his savings, leaving him unable to pay for transportation. He had arranged for a friend to drive him to the hearing, but the friend failed to secure a vehicle on the day of the hearing. Nimaga attempted to find alternative transportation but could not reach the Immigration Court. Consequently, the Immigration Judge ordered him removed in absentia. Nimaga filed a motion to reopen the proceedings, arguing that the burglary and lack of funds constituted exceptional circumstances, but the motion was denied by the Immigration Judge and subsequently dismissed by the Board of Immigration Appeals.
The Seventh Circuit reviewed the denial of Nimaga's motion to reopen for abuse of discretion. Under 8 U.S.C. § 1229a(b)(5)(C)(i), an in absentia removal order may be rescinded only if the petitioner files a motion within 180 days and demonstrates that their failure to appear was due to 'exceptional circumstances.' The statute defines exceptional circumstances as events beyond the alien's control, such as battery, extreme cruelty, or serious illness, but excludes less compelling circumstances. The court noted that while the theft of Nimaga's savings was beyond his control, the legal standard requires that the circumstances be as compelling as the statutory examples. The court distinguished this case from Nazarova v. I.N.S., where the agency's own confusing actions regarding an interpreter caused the petitioner's absence. In Nimaga's case, the court found that while the burglary and failed ride were difficult, Nimaga had the means to contact the Immigration Court on the day of the hearing to explain his situation. The court reasoned that notifying the court is a minimal and logical step that, if not taken, undermines a claim of exceptional circumstances. The court observed that Nimaga was on notice of the risk of removal and had ample opportunity to contact the court, either directly or through his former counsel, but failed to do so. Therefore, the court concluded that the Immigration Judge and the Board did not abuse their discretion in finding that the circumstances were not exceptional.
The removal order against Nimaga remains enforceable, and he is subject to immediate deportation. The court denied the petition for review but postponed the issuance of the mandate pending further submissions regarding Nimaga's efforts to obtain a U visa. The decision reinforces the high bar for rescinding in absentia orders, emphasizing that petitioners must actively notify the court of their inability to appear, even when facing financial hardship or transportation failures.
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