Case: 22-60336 Document: 00516845947 Page: 1 Date Filed: 08/04/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED August 4, 2023 No. 22-60336 ____________ Lyle W. Cayce Clerk Sebastian Kassomi, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. ______________________________ Petition for Review of an Order of the Board of Immigration Appeals Agency No. A079 003 925 ______________________________ Before Clement, Elrod, and Willett, Circuit Judges. Per Curiam: * Sebastian Kassomi petitions for review of the Board of Immigration Appeals’ final order removing him from the United States to Tanzania. Because the BIA did not address the dispositive issue with respect to Kassomi’s request for a continuance to file a Form EOIR-42B application for cancellation of removal, we GRANT the petition in part, VACATE the BIA’s decision in part, and REMAND to the BIA for further proceedings. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-60336 Document: 00516845947 Page: 2 Date Filed: 08/04/2023 No. 22-60336 I. Sebastian Kassomi, a native and citizen of Tanzania, was served with a notice to appear in 2007 alleging that he was an immigrant not in possession of valid entry documents and thus subject to removal. In January 2018, Kassomi filed an I-589 application for asylum, withholding of removal, and CAT protection. At an April 2018 preliminary hearing on Kassomi’s I-589 application, the IJ scheduled Kassomi’s merits hearing for February 12, 2019 and set a January 14, 2019 filing deadline for supporting documentation. The IJ also instructed Kassomi’s counsel, with Kassomi present, regarding the biometrics requirement for his I-589 application, stating: “make sure [Kassomi] is fingerprinted. Failure to do so[] is abandonment of the application.” In December 2018, as she was preparing for Kassomi’s merits hearing on his I-589 application, Kassomi’s counsel realized that Kassomi was potentially eligible for an additional form of relief—cancellation of removal— in light of the Supreme Court’s June 2018 opinion in Pereira v. Sessions, 138 S. Ct. 2105 (2018). Accordingly, Kassomi’s counsel prepared a Form EOIR- 42B application for cancellation of removal, which she intended to file along with the supporting documentation for Kassomi’s I-589 application prior to the January 14 deadline. However, when Congress was unable to pass an appropriations bill, the federal government—including the immigration courts—shut down from December 22, 2018 to January 25, 2019. Kassomi was therefore unable to make any filings by the January 14 deadline. On February 1, 2019—one week after the government had reopened—Kassomi attempted to file his 42B application as well as supporting documentation for his I-589 application but “was turned away” at the filing window by court personnel and instructed to “file [the documents] in court with the judge” on the day of the hearing. Kassomi was not fingerprinted between the April 2018 preliminary hearing and his February 2019 merits hearing. 2 Case: 22-60336 Document: 00516845947 Page: 3 Date Filed: 08/04/2023 No. 22-60336 At Kassomi’s February 14, 2019 merits hearing on his I-589 application, Kassomi’s counsel explained to …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals