Fong Yang Lo, AKA Fong Yang Yu Bin Lo v. John D. Ashcroft, Attorney General

When Yu Bin Lo and Fong Yang Lo (“petitioners”), husband and wife, failed to appear at their scheduled removal hearing, the Immigration Judge (“IJ”) ordered them removed in absentia pursuant to 8 U.S.C. § 1229a(b)(5)(A). They filed motions to reopen, asserting that their failure to appear was due to their counsel’s ineffective assistance and Mrs. Lo’s medical condition. The IJ denied their motions, and the BIA dismissed their appeal. They petition this court for review of the denial of their motions to reopen.

We conclude that the petitioners’ failure to attend their removal hearing was due to ineffective assistance of counsel which was an “exceptional circumstance” within the meaning of § 1229a(e)(l), requiring rescission of their removal order pursuant to § 1229a(b)(5)(C)(i). See Monjaraz-Munoz v. INS, 2003 WL 21848160 , at *3 (9th Cir.2003) (“An in absentia removal order shall be rescinded if the alien demonstrates that he failed to appear because of ‘exceptional circumstances.’ ”) (citing Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996)). Accordingly, we grant the petition for review, reverse the denial of the motions to reopen, and remand to the BIA for further…