Souleymane Nimaga v. TODD W. BLANCHE, Acting Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3065
S OULEYMANE NIMAGA,
Petitioner,
v.
TODD W. BLANCHE,
Acting Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
No. A088-944-732
____________________
A RGUED S EPTEMBER 9, 2025 — DECIDED A PRIL 29, 2026
____________________
Before R OVNER , HAMILTON , and S CUDDER , Circuit Judges.
R OVNER , Circuit Judge. Souleymane Nimaga, a native of
Ivory Coast and a citizen of Mali, seeks review of a Board of
Immigration Appeals decision affirming the denial of his mo-
tion to reopen his Immigration Court proceeding and rescind
the order of removal that the Immigration Judge entered in

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2 No. 20-3065
absentia when Nimaga failed to appear for a hearing. For the
reasons that follow, we deny the petition for review.
I.
Nimaga entered the United States in August 2000 as a non-
immigrant student. In 2010, the Department of Homeland Se-
curity (“DHS”) issued a Notice to Appear and initiated a re-
moval proceeding based on Nimaga’s failure to carry a full
course of study from 2002 to 2010. Through his counsel, Nim-
aga admitted the factual allegations set forth in the Notice and
conceded his removability as charged. After several adjourn-
ments and continuances in the proceeding, an individual
hearing was scheduled for October 1, 2019, at 3 p.m. in Chi-
cago.
Meanwhile, on November 8, 2016, while Nimaga’s case
was pending before the Immigration Court, his citizen spouse
had been arrested for domestic violence after she struck Nim-
aga over the head with a large stack of paper and attempted
to stab him with a kitchen knife. She eventually pleaded
guilty to criminal recklessness and was ordered to serve one
year in jail, with all but four days of that term suspended, and
one year of probation. The couple ultimately divorced in 2018.
In 2017, Nimaga applied for a U visa and filed an EOIR-42B
application for cancellation of removal and adjustment of sta-
tus to that of a legal permanent resident as a victim of domes-
tic violence, pursuant to section 40703 of the Violence Against
Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 1955
(Sept. 13, 1994), and its legislative successors. See 8 U.S.C.
§§ 1101(a)(15)(U), 1154(a)(1), 1229b, 1255(a); 8 C.F.R.
§§ 204.2(c)(1)(vi), 214.14(a)(10).

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No. 20-3065 3
In June 2019, Nimaga’s attorney sought to withdraw as his
counsel based on a breakdown in communication and Nim-
aga’s failure to pay his attorney’s fees. The Immigration Court
granted that motion on June 17, 2019.
Nimaga made plans to attend the October 1, 2019, hearing.
The hearing was in Chicago, and Nimaga lived in Indianapo-
lis, a three-plus hour drive away. He did not have a car, but
he made arrangements with a friend, Brice Bassa: Bassa was
to borrow his girlfriend’s car and give Nimaga a ride to Chi-
cago. (Bassa had his own vehicle, but it was unreliable.) As a
backup, Nimaga planned to take a Greyhound bus to Chicago
if the ride with Bassa fell through.
In August 2019, Nimaga was working at the Indiana State
Fair. With his work authorization due to expire on August 30,
he worked his last day at the Fair on August 27. He took home
with him the $2,200 in cash he was paid by the Fair, and later
that night someone broke into his apartment and stole all of
his money. He reported the burglary to the Indianapolis po-
lice, who provided him with an information card reflecting
the report. As a practical matter, he could not find a job with
only a few days left on his work authorization. Left virtually
penniless as a result of the burglary, Nimaga was unable to
pay his rent, pay for a phone, or support himself. By the end
of September, he says, he was not getting enough to eat.
In late September, Nimaga sought pro bono legal assis-
tance from the Neighborhood Christian Legal Clinic in Indi-
anapolis, but the clinic told him they could not help him with
his immigration case. They did caution him how important it
was for him not to miss the hearing scheduled for October 1,
lest he be summarily ordered removed. Nimaga did not at-
tempt to contact any of the attorneys who had represented

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4 No. 20-3065
him previously, nor did he make contact with the Immigra-
tion Court.
When October 1 arrived, Nimaga’s friend Bassa failed to
borrow a car to take him to his immigration hearing in Chi-
cago despite multiple prior assurances he would do so. Nim-
aga had no funds with which to buy a bus ticket. He borrowed
a phone from his neighbor and sought a ride from everyone
he knew, including his ex-wife. His neighbor herself tried to
arrange a ride for him. No one responded to their pleas. Nim-
aga avers that he called the 1-800 number on his hearing no-
tice, but encountered a menu with many options, and his
neighbor allegedly took the phone from him before he could
get through to anyone. (His neighbor’s written statement
does not confirm that she took the phone from him before he
could reach the Immigration Court.) Nimaga was unable to
make it to Chicago, and the Immigration Judge ordered Nim-
aga removed in absentia. Interestingly, although Nimaga’s re-
tained attorney had been released from representing him, the
attorney was present at the hearing.
Nimaga filed a motion to reopen the proceeding and to re-
scind the removal order, setting forth the events described
above. In an order dated February 18, 2020, the Immigration
Judge denied the motion, finding that he had not met his bur-
den of showing that “exceptional circumstances” caused him
to miss his October 1 hearing. See 8 U.S.C. § 1229a(b)(5)(C)(i).
The court noted among other things that Nimaga had not
proffered sufficient evidence to support his claim that he re-
ported the August 27 burglary to the police and he failed to
explain why, in the 35 days between the burglary and the Oc-
tober 1 hearing, he did not notify the Immigration Court of

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No. 20-3065 5
his situation either by phone or in writing and explain why it
prevented him from attending the hearing.
On September 24, 2020, the BIA dismissed Nimaga’s ap-
peal of the denial of his motion to reopen. The Board agreed
that Nimaga had failed to establish “exceptional circum-
stances” that prevented his appearance at the October 1 hear-
ing. The Board reasoned in part that because Nimaga was al-
ready experiencing financial difficulties and had already
made arrangements with his friend Bassa to drive him to Chi-
cago before the burglary occurred, the chain of events follow-
ing the burglary (which Nimaga criticized the Immigration
Judge for ignoring) did not cause him to miss the hearing.
II.
We review the denial of Nimaga’s motion to reopen the
proceedings and rescind the order of removal for abuse of dis-
cretion. Nazarova v. I.N.S., 171 F.3d 478, 482 (7th Cir. 1999); see
8 C.F.R. § 1003.2(a) (“[t]he decision to grant or deny a motion
to reopen or reconsider is within the discretion of the Board
…”). The Board’s decision constitutes an abuse of discretion
if it is arbitrary, irrational, or contrary to law. Fessehaye v. Gon-
zales, 414 F.3d 746, 752 n.5 (7th Cir. 2005) (citing Guo v. Ash-
croft, 386 F.3d 556, 562 (3d Cir. 2004)).
Where, as in this case, the petitioner received proper no-
tice of the hearing he failed to attend and the petitioner was
otherwise removable, an in absentia removal order may be re-
scinded only if the petitioner files a motion to reopen with the
Immigration Judge within the 180-day period after the order
is entered and the motion shows that his failure to appear was
due to “exceptional circumstances.” 8 U.S.C.
§ 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1). There is

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6 No. 20-3065
no dispute that Nimaga filed a timely motion to reopen; the
dispute in this appeal centers on whether his motion demon-
strated that his absence was due to exceptional circumstances.
“Exceptional circumstances” are defined as “exceptional
circumstances (such as battery or extreme cruelty to the alien
or any child or parent of the alien, serious illness of the alien,
or serious illness or death of the spouse, child, or parent of the
alien, but not including less compelling circumstances) be-
yond the control of the alien. 8 U.S.C. § 1229a(e)(1). The peti-
tioner thus bears the burden of making three key showings:
(1) that circumstances beyond his control; (2) caused his ab-
sence from the hearing; (3) and that these circumstances were
exceptional, i.e., they were as compelling as battery or ex-
treme cruelty to himself, his child, or parent; serious illness of
the petitioner; or the serious illness or death of a spouse, child,
or parent of the petitioner. The agency looks to the entirety of
the circumstances confronting the petitioner in deciding
whether they satisfy these criteria. Matter of W-F-, 21 I. & N.
Dec. 503, 509 (B.I.A. 1996); see Uriostegui v. Gonzales, 415 F.3d
660, 664 (7th Cir. 2005); Montejo-Gonzalez v. Bondi, 166 F.4th
851, 855 (9th Cir. 2026) (en banc) (collecting cases). Among
other factors, the agency will consider the petitioner’s sup-
porting documentation, his efforts to contact the Immigration
Court, and his promptness in seeking relief from the order of
removal. In re B-A-S, 22 I. & N. Dec. 57, 59 (B.I.A. 1998). The
exceptional-circumstances standard is a demanding one; re-
lief is reserved for the rare case. Kaweesa v. Gonzales, 450 F.3d
62, 68 (1st Cir. 2006) (citing Georcely v. Ashcroft, 375 F.3d 45, 50
(1st Cir. 2004), and Herbert v. Ashcroft, 325 F.3d 68, 72 (1st Cir.
2003)).

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No. 20-3065 7
Courts have concluded that a variety of obstacles to a pe-
titioner’s attendance do not qualify as exceptional, including
experiencing car trouble, encountering unexpected (but fore-
seeable) traffic and parking difficulties, general claims of ill-
ness, and misunderstandings about the date of the court hear-
ing. See Kasyupa v. Keisler, 252 F. App’x 106, 108 (8th Cir. 2007)
(non-precedential decision) (lack of notice of hearing due to
petitioner’s failure to update address with counsel, the Immi-
gration Court, or DHS); Uriostegui, 415 F.3d at 663–64 (immi-
grant misheard date of next hearing when announced by
court); Ursachi v. I.N.S., 296 F.3d 592, 594 (7th Cir. 2002) (ill-
ness, supported by physician’s note, characterized by flu
symptoms and dizziness that resulted in immigrant staying
home for several days on physician’s advice); Magdaleno de
Morales v. I.N.S., 116 F.3d 145, 148–49(5th Cir. 1997) (automo-
bile breakdown one hour prior to hearing, after which immi-
grants had a relative take them home where, beyond cursory,
unsuccessful search for court phone number, they made no
effort to contact court before receiving notice of in absentia
order of deportation more than two weeks later); Sharma v.
I.N.S., 89 F.3d 545, 547–48 (9th Cir. 1996) (traffic and parking
difficulties causing petitioners to be 45 minutes to one hour
late to hearing); Thomas v. I.N.S., 976 F.2d 786, 790 (1st Cir.
1992) (per curiam) (2-1 decision) (petitioner and his attorney
had “crossed signals” about where they were to meet, causing
them to be 30 minutes late to hearing).1
1 But see also Montejo-Gonzalez, 166 F.4th at 855–58 (where two traffic
accidents had resulted in extraordinary multi-hour traffic delay causing
petitioners to be late for hearing, Immigration Judge and Board erred in
applying per se rule that traffic delays can never amount to exceptional
circumstances, rather than examining the totality of the circumstances).

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8 No. 20-3065
By contrast, in Nazarova, 171 F.3d 478 (2-1 decision), it was
the agency itself which was responsible, at least in part, for
the petitioner’s late arrival at a scheduled hearing. The agency
had given the Russian-speaking immigrant, Nazarova, mixed
signals as to whether it would provide her with an interpreter
so that she could comprehend what was happening in her re-
moval proceeding: The agency had assured the employer
who telephoned the agency on Nazarova’s behalf that the Im-
migration Court would provide her with an interpreter, but
when Nazarova thereafter attended a master calendar hear-
ing, no interpreter was present and Nazarova could under-
stand little to nothing of what transpired. Nazarova therefore
engaged an interpreter on her own for the subsequent merits
hearing, and it was the interpreter’s tardiness that caused
Nazarova to be two hours late for that hearing, resulting in an
in absentia order of deportation. The Immigration Judge, se-
conded by the Board of Immigration Appeals, denied her
quickly-filed motion to reopen, reasoning that Nazarova’s ab-
sence was not the result of exceptional circumstances. We dis-
agreed:
The entire unfortunate chain of events leading
to Nazarova’s tardiness at her second hearing
began with the INS’s confusing and contradic-
tory actions with respect to the interpreter ques-
tion. When it failed to produce one at Naza-
rova’s first hearing, she reasonably believed
that the advice her employer had received over
the telephone was in error and that she needed
to find her own interpreter. Whether or not the
INS gave consistent or accurate advice on this
crucial aspect of the hearing was certainly a
matter beyond Nazarova’s control, and it made

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No. 20-3065 9
all the difference to the quality of the process
she received.
* * *
When her interpreter failed to appear on time,
Nazarova faced a serious problem to which
there was simply no good solution. On the one
hand, she could appear alone at the merits hear-
ing. Given the erroneous information she had
received that an interpreter would be present at
the scheduling hearing, and her resulting expe-
rience of that hearing as incomprehensible gib-
berish, she held the very reasonable belief that
her physical presence alone would do nothing
to secure an opportunity to participate mean-
ingfully in the proceeding. Alternatively, she
could wait for her interpreter and hope that she
would still be allowed the opportunity to state
her case even if she arrived late. Although the
latter was surely the better of the two choices
from her perspective, the IJ and the BIA have
formalistically demanded that Nazarova suffer
the consequences of her failure to appear. …
Nazarova promptly notified the IJ of the reason
why she was late in a handwritten motion to re-
open dated … the very same day, … only
minutes after she found out what had hap-
pened. We cannot endorse the approach of the
IJ and the BIA to this case. … .
Id. at 484–85; see also E.A.C.A. v. Rosen, 985 F.3d 499, 504–06
(6th Cir. 2021) (unrepresented 13 year-old immigrant’s young
age and mother’s recent childbirth prevented immigrant from

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10 No. 20-3065
navigating immigration process to change location of hearing
or from securing transportation from New York to Memphis
in order to attend hearing); Singh v. Gonzales, 244 F. App’x 99,
100 (9th Cir. 2007) (non-precedential decision) (immigrant’s
painful back condition, reported to Immigration Court by
counsel on day of scheduled hearing and substantiated by tes-
timony of immigrant’s chiropractor on same day, prevented
immigrant from walking upright and enduring two-hour
drive to site of hearing); Romani v. I.N.S., 146 F.3d 737, 739 (9th
Cir. 1998) (immigrants were present at courthouse on time but
failed to appear before Immigration Judge due to erroneous
advice of their absent counsel’s assistant).
To sum up: Obstacles to a petitioner’s timely attendance at
a hearing that are foreseeable (encountering traffic delays or
parking difficulties), mundane (non-severe illness) or in some
way attributable to the petitioner himself (misunderstandings
about the hearing date or time) will likely not qualify as ex-
ceptional circumstances, whereas obstacles that were truly
unexpected and beyond the control of the petitioner (Naza-
rova) may so qualify.
Looking to the totality of the circumstances that con-
fronted Nimaga, reasonable minds might differ as to whether
these circumstances were exceptional in the sense that they
rendered him unable to appear before the Immigration Court.
This is particularly so when one takes into consideration the
possibility of Nimaga contacting the court in advance of the
hearing—if not in the 35-day period between the August 27
burglary and the October 1 court date, then certainly on the
day of the hearing itself—to apprise the court of the difficulty
he would have in showing up in person for the October 1
hearing.

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No. 20-3065 11
Prior to October 1, Nimaga had Bassa’s assurance that
Bassa would borrow a car and drive him to Chicago, but on
the morning of the October 1 court hearing, Nimaga learned
that the ride had fallen through. At that juncture, Nimaga was
essentially in the same position as an immigrant whose car
has broken down or who has encountered traffic delays or
parking difficulties—events that may be considered beyond
an individual’s control but which courts typically find not to
constitute exceptional circumstances.2 What remained within
Nimaga’s ability and control was the option to contact the Im-
migration Court to advise the court that he would be unable
to make it to Chicago for the hearing. In the hours prior to the
3 p.m. hearing, he could have contacted the court directly, or
he might have contacted his former counsel and asked him to
contact the court. (Recall that this attorney came to the Octo-
ber 1 hearing notwithstanding the fact that the court had re-
leased him from representing Nimaga.) As the Board has ob-
served, “Notifying the Immigration Court of the respondent's
unavailability is a minimal and logical step that, if not taken,
is a factor which tends to undermine a claim of exceptional
circumstances.” B–A–S–, 22 I. & N. Dec. at 59; see Lonyem v.
U.S. Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003) (per cu-
riam) (“Lonyem did not indicate that he made any effort to
contact the Immigration Court on the day of his removal hear-
ing to alert the IJ of his absence and to explain the reason for
it.”); Magdeleno de Morales, 116 F.3d at 149. The Board has a
point: If a petitioner knows ahead of time that he will not, or
2 Although unexpected, Bassa’s failure to borrow his girlfriend’s car
in order to give Nimaga a ride was not unforeseeable to Nimaga: By his
own account, he had planned prior to the burglary to purchase a bus ticket
to Chicago in the event the ride fell through.

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12 No. 20-3065
likely will not, be able to attend a scheduled hearing, he has
both the opportunity and the obligation to contact the Immi-
gration Court so that the hearing can either be rescheduled or
conducted by video and the time and resources of the court,
the parties, and their attorneys is not wasted. See Islam v. Gon-
zales, 214 F. App'x 29, 31 (2d Cir. 2007); Lonyem, 352 F.3d at
1341; Celis-Castellano v. Ashcroft, 298 F.3d 888, 890, 892 (9th Cir.
2002); Magdaleno de Morales, 116 F.3d at 149.
And this was essentially the Immigration Judge’s point
here: Nimaga had ample opportunity to notify the court of his
predicament in advance of the hearing rather than simply not
show up. One can appreciate Nimaga’s efforts on the morning
of the hearing to seek a ride from someone else in a last-ditch
effort to attend, yet still conclude that his first priority should
have been to contact the Immigration Court to advise it of his
lack of transportation, particularly when he was on notice that
he was at risk of being ordered removed in absentia if he did
not appear in court.
This was not a scenario in which the immigrant (or a close
family member) was injured or fell seriously ill just prior to a
scheduled hearing and the immigrant was both unable to at-
tend the hearing and to provide advance notice to the court of
his situation. Nimaga had already conceded his removability,
and his case remained before the Immigration Court pending
his efforts to obtain a U visa and adjust his status. He was on
notice that he was at risk of summary removal in the event he
failed to appear at the October 1 hearing. And he knew, in
time to notify the Immigration Court, of the obstacle to his
attendance. His financial circumstances were dire as a result
of the burglary, but they did not deprive him of the means to
notify the court, as his efforts with the borrowed phone to

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No. 20-3065 13
seek alternate transportation on the morning of the hearing
confirm.
We do not doubt that the Immigration Judge (and the
Board) could have seen things differently and concluded that
the circumstances Nimaga has described—which we have ac-
cepted as true for purposes of his petition for review—were
exceptional. The theft of Nimaga’s savings in August was
both beyond his control and financially devastating. Nimaga
was already dependent on his friend to borrow a car in order
to make the multi-hour drive to Chicago for the hearing, and
the burglary eliminated his backup plan to buy a bus ticket.
For a person with limited financial means and without a ro-
bust support network of family and friends, an unexpected
event like a burglary or a ride falling through at the eleventh
hour can pose insurmountable obstacles to getting himself to
an out-of-town hearing on time.
But given that Nimaga did have the means to contact the
Immigration Court on the day of the hearing to report his pre-
dicament and failed to do so, we cannot say that it was an
abuse of discretion for the Immigration Judge and the Board
to find that the difficulties confronting Nimaga were not ex-
ceptional.
III.
Because the Board did not abuse its discretion in denying
Nimaga’s motion to reopen based on extraordinary circum-
stances, we DENY the petition for review. The parties shall
file supplemental memoranda regarding the status of Nim-
aga’s efforts to obtain a U visa, and what steps, if any, this
court and/or the Board should take in view of those efforts, on
or before May 29, 2026. This court will postpone issuance of

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14 No. 20-3065
the mandate pending its review of those submissions and un-
til further order of the court.

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