Hernandez-Guzman

MEMORANDUM ****

Petitioner Jesus Alberto Hernandez-Guzman (“Hernandez”), a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his motion for reconsideration pursuant to 8 C.F.R. § 3.2 (d) (providing that any departure from the United States occurring after the filing of a motion to reconsider shall constitute a withdrawal of such motion). The permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 apply. See Castro-Espinosa v. Ashcroft, 257 F.3d 1130 , 1131 n. 1 (9th Cir.2001). We have jurisdiction pursuant to 8 U.S.C. § 1252 (b). We reverse and remand.

Procedural Background

On September 30, 1999, the Immigration Judge (“IJ”) found Hernandez removable and denied his applications for cancellation of removal and voluntary departure. On appeal to the BIA, Hernandez was represented by counsel. On March 16, 2000, the BIA dismissed Hernandez’s appeal, but did not notify counsel of its decision. On March 21, 2000, the Immigration and Naturalization Service (“INS”) removed Hernandez from the United States.

On April 25, 2001, counsel first learned of the BIA’s dismissal and filed a motion…