Long Chen v. Immigration & Naturalization Service

MEMORANDUM ***

Long Chen petitions for judicial review of an order in which the Board of Immigration Appeals (“BIA”) denied his motion to reopen removal proceedings held in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252 (b), and we grant the petition.

We review the BIA’s denial of a motion to reopen for an abuse of discretion. Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002). The BIA’s denial of a motion to reopen is reversed only if it is “arbitrary, irrational, or contrary to law.” Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002).

The BIA abused its discretion in not finding that Chen’s absence was the result of exceptional circumstances. Ineffective assistance of counsel constitutes an “exceptional circumstance” justifying the reopening of a deportation made in absentia. In re Grijalvar-Barrera, 21 I. & N. Dec. 472, 473 (BIA 1996). Chen’s former attorney’s instruction to Chen to go home instead of attending the hearing, coupled with the attorney’s failure to inform the court of Chen’s necessary absence, constitutes ineffective assistance of counsel. Id,.; see also Fajardo v. INS, 300 F.3d 1018 , 1022 n. 8 (9th Cir.2002) (noting that it is difficult to imagine how…