Ferrari

MEMORANDUM **

In case no. 03-74546, Carlos Alberto Horne Ferrari (“Horne”), a native and citizen of Argentina, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an immigration judge’s (“IJ”) denial of his first motion to reopen proceedings in which he was ordered removed in absentia. In case no. 04-75271, Horne petitions for review of the BIA’s denial of his second motion to reopen on grounds of ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252 . We review for abuse of discretion, Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002), and we grant the petitions for review.

The IJ and BIA abused their discretion when they concluded that Horne did not demonstrate exceptional circumstances to excuse his absence from his hearing before the IJ, pursuant to 8 U.S.C. § 1229a(b)(5)(C) and (e)(1). Considering the particular facts presented in this case, see Singh, 295 F.3d at 1040 , Horne claimed that he suffered from diarrhea and vomiting on the day of the hearing, and submitted evidence that he was examined by a medical doctor that day and that the doctor diagnosed him as suffering from “acute gastroenteritis,” prescribed him…