Lucena

MEMORANDUM ***

Jesus Hernandez Lucena and Santa Delia Partida Flores (together, “Petitioners”) petition for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s (“IJ”) denial of their motion to reopen in absentia removal proceedings. We have jurisdiction under 8 U.S.C. § 1252 , and we grant the petition for review and remand for further proceedings.

The BIA may rescind an in absentia removal order if, within 180 days, the alien files a motion to reopen demonstrating exceptional circumstances that could excuse the alien’s failure to appear. 8 U.S.C. § 1229a(b)(5)(C)(i). Exceptional circumstances include circumstances beyond the control of the alien, such as serious illness or death of an immediate relative. 8 U.S.C. § 1229a(e)(1).

Ineffective assistance of counsel (“IAC”) may also be an exceptional circumstance warranting rescission of an in absentia removal order. Reyes v. Ashcroft, 358 F.3d 592, 596 (9th Cir.2004). Here, Petitioners argue that, in failing to attend the February 3, 2003 hearing, because they relied on the fraudulent representation and advice of their non-attorney immigration consultant, Estela Rodriguez they did not…

dissenting:

This case addresses whether Petitioners’ decision to ignore a change-of-hearing notice from an Immigration Court in reliance upon the advice of an immigration consultant, which resulted in the entry of an order of removal in absentia, gave rise to an ineffective assistance of counsel claim in a motion to reopen. Petitioners have not made a case of ineffective assistance of counsel or of “exceptional circumstances” that prevented Petitioners from appearing at their deportation hearing.

I. Facts

The facts of this case are straightforward. Petitioners’ association with Estela Rodriguez, a self-proclaimed “immigration consultant,” began in 2000. Rodriguez caused Petitioners to reveal themselves to authorities by filing a Request for Asylum on November 22, 2000, hoping to achieve resident status and a work permit for them by securing cancellation of the resulting order of removal. On May 15, 2001, the Immigration and Naturalization Service (“INS”) commenced removal proceedings against Petitioners. Pursuant to the advice of their immigration consultant, Petitioners appeared on November 19, 2001, to request a continuance of removal proceedings to secure counsel, which they…