Nang Duc Vu v. Mukasey

MEMORANDUM **

Nang Due Vu, a native and citizen of Vietnam, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s order denying his motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252 . Reviewing for abuse of discretion, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), we grant the petition for review and remand for further proceedings.

The agency abused its discretion in concluding that Vu’s motion to reconsider did not establish “exceptional circumstances” under 8 U.S.C. § 1229a(e)(l) to excuse his failure to appear at his removal hearing. See Singh v. INS, 295 F.3d 1037, 1040 (9th Cir.2002) (the agency “should not deny reopening of an in absentia deportation order where the denial leads to the unconscionable result of deporting an individual eligible for relief from deportation”). Vu “diligently appeared for all of his previous healings,” “could have easily misunderstood the [date] of the [missed] hearing,” and had an immediate relative visa petition approved shortly after his in absentia removal order. See id. (stating that in like circumstances the agency should not “require] the…