Hernandez

MEMORANDUM **

Joel Carrillo Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion to reopen removal proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252 . We grant the petition for review and remand for further proceedings. We dismiss consolidated case No. 05-73794.

At the time of its decision, the BIA did not have the benefit of Perez v. Mukasey, 516 F.3d 770 (9th Cir.2008), which held that “a petitioner who arrives late for his immigration hearing, but while the IJ is still in the courtroom, has not failed to appear.” Id. at 774 . We note that the record is unclear regarding whether the IJ was present in the courtroom after Carrillo Hernandez arrived. We therefore remand for the BIA to consider whether Petitioner failed to appear in light of Perez . If necessary, the BIA should also consider whether counsel Argumedo’s affidavit supports Carrillo Hernandez’s claim of exceptional circumstances. See Lo v. Ashcroft, 341 F.3d 934, 939 (9th Cir.2003).

Because the Attorney General has represented that he “will…