Mencos Borrayo v. Holder

MEMORANDUM **

In these consolidated petitions for review, Julio Eugenio Meneos Borrayo, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s (“IJ”) order of removal and denying his subsequent motion to reopen based on ineffective assistance of counsel. Our jurisdiction *712 is governed by 8 U.S.C. § 1252 . We review for abuse of discretion the BIA’s denial of a motion to reopen and review de novo legal and constitutional claims, including claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). In 07-73166, we grant the petition for review and remand. In 08-70982, we grant in part and dismiss in part the petition for review and remand.

The agency did not have the benefit of our decision in Chaly-Garcia v. United States, 508 F.3d 1201 (9th Cir.2007), when it denied Meneos Borrayo’s application for special rule cancellation of removal. We therefore remand for the agency to consider Meneos Borrayo’s application in light of this intervening case.

The BIA abused its discretion in denying Meneos Borrayo’s motion to reopen by requiring…