Torres-Ramos

MEMORANDUM *

Petitioner Jorge Torres-Ramos (“Ramos”) appeals the Board of Immigration’s (“BIA”) summary affirmance of the Immigration Judge’s (“IJ”) order of removal. The IJ ordered Ramos removed in absentia as an alien previously convicted of a deportable firearms offense. 8 U.S.C. § 1227 (a)(2)(C). Ramos makes three principal arguments on appeal. First, he argues that the notice of his removal hearing was fatally defective because it failed to comply with certain statutory requirements. Second, he contends that his failure to appear at the removal hearing was due to ineffective assistance of counsel, thus constituting “exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(c)(i). Third, Ramos argues that the proof of the prior conviction offered by the government at the removal hearing did not amount to “clear, unequivocal, and convincing evidence ... that [he] is removable.” 8 U.S.C. § 1229a(b)(5)(A).

We have jurisdiction pursuant to 8 U.S.C. § 1252 (a)(2)(D), and grant the petition with instructions to the BIA to reverse and vacate the IJ’s removal order. Counsel’s admitted negligent failure to inform Ramos of his hearing date constitutes exceptional circumstances that would…

concurring in part and dissenting in part.

I agree that the removal order entered in absentia should be rescinded under Lo v. Ashcroft, 341 F.3d 934 (9th Cir.2003). This means that everything goes back to square one. Infirmities, if any, in the original proceeding are wiped out. Instead of leaving well enough alone, however, the majority goes further, holding not only that the government’s reliance on the I-213 was insufficient (which is unnecessary), but also that no other evidence of a conviction (or convictions) can be submitted— which is wrong. We have no idea whether *994 all relevant documents of conviction were available at the time of the in absentia hearing; there was, of course, no challenge to the 1-213 and no need for presentation of other proof. Nor is it a fair reading of the hearing to imply, as the disposition does, that the government was given a chance to produce additional documentation of conviction but failed to do so. 1 This is no different from lifting a default; it would never occur to anyone to limit the plaintiff at trial to the showing he made to prove up the default. Having undone the removal order, the rest should be left alone. I accordingly dissent…