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Cite as 30 I&N Dec. 81 (BIA 2026) 	Interim Decision #4249
Matter of K-K-U-J-, Respondent
Decided by Board August 27, 2026 1
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The Immigration Judge erred in finding exceptional circumstances warranting sua sponte
reopening and rescission of an in absentia removal order where the record did not support
the respondent’s claim that an individual misled him into believing he did not need to
appear in Immigration Court.
FOR THE RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Maria E. Arcara, Counsel
BEFORE: 	Board Panel: 	GEMOETS and VOLKERT, Appellate Immigration Judges;
TERRIEN, Temporary Appellate Immigration Judge.
TERRIEN, Temporary Appellate Immigration Judge:
The Department 	of 	Homeland 	Security (“DHS”) appeals 	from 	the
Immigration Judge’s May 9, 2026, decision granting the respondent’s motion
to reopen and rescind the in absentia removal order. The respondent, a native
and citizen of Uzbekistan, has not responded to the appeal. The appeal will
be sustained, and the Immigration Judge’s decision will be reversed.
The 	Immigration 	Judge 	found 	that 	the 	respondent 	contracted 	an
individual to request a continuance of the proceedings. 	The respondent
asserts that he was misled by the individual into believing he was not required
to appear in Immigration Court on the date assigned and, as a result, an in
absentia removal order was issued against him. 	The Immigration Judge
noted that the respondent presented both the motion filed on his behalf and a
more detailed motion provided by the individual, who advised the respondent
that the more detailed motion was the document that he filed, when he did
not. The Immigration Judge determined that “this was a deliberate attempt
to deceive.” 	The Immigration Judge found that there was “sufficient
1 	Pursuant to Order No. 7197-2026, dated September 18, 2026, the Attorney General
designated the Board’s decision in Matter of K-K-U-J- (BIA August 27, 2026), as
precedent in all proceedings involving the same issue or issues. See 8 C.F.R. § 1003.1(g)(3)
(2026). Editorial changes have been made consistent with the designation of the case as a
precedent.

Cite as 30 I&N Dec. 81 (BIA 2026) 	Interim Decision #4249
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evidence in this record to suggest [the r]espondent was misled by someone
he believed was authorized to represent him before this court, even though it
appears this was not the case.” The Immigration Judge concluded that this
constituted an exceptional circumstance and reopened proceedings pursuant
to 8 C.F.R. § 1003.23 (2026).
DHS argues that the Immigration Judge erred in granting the respondent’s
motion to reopen because both motions for continuance, allegedly prepared
by the individual, indicate that the respondent was proceeding pro se and
were signed by the respondent, “which belies the respondent’s claim that he
reasonably believed” that the individual was representing him as an attorney.
DHS contends that the circumstances “are not truly exceptional” warranting
the exercise of sua sponte authority. DHS argues that, even if the individual
presented himself as an attorney, the respondent “failed to meet the ‘high
standard’ established for ineffective assistance of counsel under Matter of
Lozada[, 19 I&N Dec. 637 (BIA 1988),] and Matter of Melgar[, 28 I&N Dec.
169 (BIA 2020)].”
We agree with DHS that the Immigration Judge erred in finding that the
respondent’s 	circumstances 	constitute 	an 	exceptional 	circumstance
warranting the exercise of sua sponte authority to reopen the proceedings.
See Matter of G-D-, 22 I&N Dec. 1132, 1133–34 (BIA 1999) (“[W]e invoke
our sua sponte authority sparingly, treating it not as a general remedy for any
hardships created by enforcement of the time and number limits in the
motions regulations, but as an extraordinary remedy reserved for truly
exceptional situations.”); Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997)
(“The power to reopen on our own motion is not meant to be used as a general
cure for filing defects or to otherwise circumvent the regulations, where
enforcing them might result in hardship.”). The respondent’s claim that he
followed the individual’s instruction that he was not required to appear in
Immigration Court for his hearing is unreasonable because both motions to
continue state that the respondent was filing them as a pro se party, were
signed by the respondent, and do not contain the individual’s name or
signature. 	See Jean Louis v. Att’y Gen. U.S., 914 F.3d 189, 192 (3d Cir.
2019) 	(holding 	that 	a 	non-lawyer’s 	bad 	advice 	is 	not 	an 	exceptional
circumstance required for rescission of an in absentia removal order).
Additionally, the respondent did not allege that the individual told him that
he was an attorney. We conclude that the respondent failed to show that his
circumstance constitutes a truly exceptional situation warranting the exercise
of sua sponte authority. See Matter of Z-R-C-N-, 29 I&N Dec. 523, 525 (BIA
2026) (“A respondent cannot succeed on her ineffective assistance of counsel
claim where the individual she hired was not an attorney and did not hold
himself out to be one.”).

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To the extent that the respondent asserted and the Immigration Judge
considered an ineffective assistance of counsel claim, the respondent failed
to comply with the procedural requirements under Matter of Lozada, 19 I&N
Dec. at 639. 	See Lu v. Ashcroft, 259 F.3d 127, 129 (3d Cir. 2001) (“We
conclude that the Lozada requirements are a reasonable exercise of the
Board’s discretion . . . .”).
ORDER: 	DHS’ 	appeal 	is 	sustained, 	the 	Immigration 	Judge’s
May 9, 2026, decision is reversed, and the motion to reopen is denied.
NOTICE: 	If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $998 for each day the respondent is in violation. See section
274D of the Immigration and Nationality Act (“INA”), 8 U.S.C. §1324d
(2024); 8 C.F.R. § 280.53(b)(14) (2026). 	Further, any respondent that has
been denied admission to, removed from, or has departed the United States
while an order of exclusion, deportation, or removal is outstanding and
thereafter enters, attempts to enter, or is at any time found in the United States
shall be fined or imprisoned not more than 2 years, or both. 	See INA
§ 276(a), 8 U.S.C. § 1326(a) (2024).