Nkomo v. Attorney General United States, No. 19-2781 (3d Cir. 2021)Annotate this Case
Nkomo came to the U.S. from Zimbabwe in 1985 and became a lawful permanent resident in 1992. In 2017, she was convicted of conspiracy to commit wire fraud, an aggravated felony. In removal proceedings, Nkomo applied for asylum, withholding of removal, and protection under the CAT. Nkomo’s U.S. citizen husband, Witkowski, then filed an I-130 Petition for Alien Relative. Witkowski was incarcerated; it was difficult for him to attend an interview. The IJ granted a continuance of Nkomo’s removal proceedings. Nkomo informed DHS that the IJ had adjourned proceedings until February 22, 2018, to allow for adjudication of the I-130 petition. DHS confirmed that it required Witkowski's presence. With the I-130 petition still pending, the IJ denied Nkomo’s removal objections. The BIA affirmed. Nkomo unsuccessfully moved to remand, arguing that the immigration court lacked jurisdiction because she was given a defective notice to appear.
DHS did not set a date to interview Witkowski about the I-130 petition until Nkomo petitioned for a writ of mandamus. In March 2019. Nkomo attended the interview, but Witkowski’s presence was waived. DHS granted the petition. Nkomo moved to reopen her removal proceedings, emphasizing the government’s delay and that she was likely to succeed on the merits because she could show extreme hardship. The BIA denied the motion to reopen as untimely because it was filed more than 90 days after the removal order. The Third Circuit vacated. Nkomo put the BIA on notice of her equitable tolling claim and the Board itself raised the issue. The BIA’s suggestion that it did not have the authority to make decisions on equitable grounds was “perplexing.”