Lellan

MEMORANDUM **

Marcus Christian Lellan, a native and citizen of Denmark, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) order denying his motion to reconsider the denial of his motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reconsider, and review de novo claims of due process violations in removal proceedings, including claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We grant the petition for review and remand.

We reject the government’s contention that the agency was precluded from considering Lellan’s motion because it was submitted after his removal to Denmark. See Lin v. Gonzales, 473 F.3d 979, 982 (9th Cir.2007) ( 8 C.F.R. § 1003.23 (b)(1) permits motions to reopen filed by aliens who are no longer the subject of removal proceedings).

We disagree with the agency’s conclusion that Lellan had constitutionally adequate counsel at his hearing before the IJ. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004) (“We do not…