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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with FED.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 …

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