Mendez-Vargas

MEMORANDUM **

Hector Salvador Mendez-Vargas petitions for review of the Board of Immigration Appeals’s (BIA) denial of his motion to reopen as untimely and for failure to es *734 tablish prejudice arising from the alleged ineffective assistance of his original lawyer, Thomas Mix. We grant the petition for review.

Mendez-Vargas entered the United States without inspection in February 1990. In September 1999, his partner (now wife), Isabel Mejia, gave birth to a daughter, Miriam, a U.S. citizen who has been diagnosed with Down’s Syndrome. In December 2001, Mendez-Vargas appeared before the IJ to seek non-legal permanent resident cancellation of removal on the ground “that removal would result in exceptional and extremely unusual hardship to the alien’s ... child[ ] who is a citizen of the United States.” 8 U.S.C. § 1229b(b)(l)(D). Mendez-Vargas was represented by Mix, to whom he had paid $5,200 to assist him.

A merits hearing was held in May 2002; however, on account of Mix’s failure to inform Mendez-Vargas as to the purpose of the hearing, Mendez-Vargas did not realize he would be deported unless he proved that it would result in “exceptional and extremely unusual hardship” to…