Drin Sylejmani v. Jefferson Sessions, III

Case: 16-60556 Document: 00514427782 Page: 1 Date Filed: 04/12/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 16-60556 April 12 2018 Lyle W. Cayce DRIN SYLEJMANI, Clerk Petitioner v. JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A097-682-016 Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges. PER CURIAM:* Petitioner Drin Sylejmani seeks review of an order of the Board of Immigration Appeals (BIA) denying his motion to reopen removal proceedings as untimely. Because the BIA failed to provide a reasoned explanation for its decision, we GRANT Sylejmani’s petition for review and REMAND for further proceedings. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 16-60556 Document: 00514427782 Page: 2 Date Filed: 04/12/2018 No. 16-60556 I. BACKGROUND Sylejmani, a citizen of Kosovo, was admitted to the United States on a J- 1 exchange visitor visa. The visa permitted him to remain in the country until September 30, 2012, but he stayed beyond that date without authorization. In September 2013, Sylejmani retained attorney Nicholas Nevarez, Jr., who assisted Sylejmani and Sylejmani’s then-wife (herself a U.S. citizen) with paperwork supporting Sylejmani’s application for adjustment to lawful permanent resident status. In February 2014, the Department of Homeland Security (DHS) initiated removal proceedings against Sylejmani, charging that he failed to maintain his status as an exchange visitor student and had remained in the United States without authorization. An initial hearing was held before an immigration judge (IJ) in April 2014. Because Sylejmani did not have an attorney at the hearing, the IJ continued the proceedings to afford him the opportunity to obtain one. Sylejmani and his first wife divorced on August 21, 2014. Sylejmani then married his second wife (also a U.S. citizen) on October 7, 2014. Nevarez witnessed and performed the marriage ceremony. On November 10, 2014, Sylejmani’s second wife filed a Form I-130 Petition for Alien Relative with United States Citizenship and Immigration Services (USCIS). 1 1 As explained by the BIA, the filing of an I-130 with USCIS commences a “two-step process” for “family-based adjustment of status.” In re Hashmi, 24 I. & N. Dec. 785, 789 (BIA 2009). At the first step, “[t]he petitioner must establish his or her own United States citizenship or lawful permanent resident status and the bona fides of the claimed relationship to the beneficiary and must also show that the family relationship meets the statutory requirements.” Id. At the second step, which begins when “the I-130 is approved and an immigrant visa is immediately available,” the respondent/beneficiary applies for adjustment of status. Id. To establish adjustment eligibility, the respondent/beneficiary must show “that he has been inspected and admitted or paroled into the United States; is eligible to receive an immigrant visa and has a visa ...

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