Opinion
Nos. 05-71966, 05-75104.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed September 24, 2010.
Joye L. Wiley, Ark Wiley, San Francisco, CA, for Petitioner.
Shelley Goad, Assistant Director, OIL, DOJ — U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.
On Petitions for Review of Orders of the Board of Immigration Appeals. Agency No. A076-842-691.
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
In these consolidated petitions for review, Jose Luis Rangel-Ledesma, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's ("IJ") removal order, and the BIA's order denying his motion to reopen proceedings 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 reopen. Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir. 2004) (per curiam). We dismiss the petition for review in No. 05-71966, and grant the petition for review in No. 05-75104.
The BIA abused its discretion in determining that Rangel-Ledesma's ineffective assistance of counsel claim was not new and could have been presented during the pendency of the appeal. See 8 C.F.R. § 1003.2(c)(1) (evidence must not have been available to be presented "at the former hearing"); see also Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) (explaining that 8 C.F.R. § 1003.2(c)(1) requires that the evidence must not have been available to be presented at the former hearing before the IJ).
We do not address the petition for review in No. 05-71966 in light of our disposition in No. 05-75104.
IN NO. 05-71966: PETITION FOR REVIEW DISMISSED.
IN NO. 05-75104: PETITION FOR REVIEW GRANTED; REMANDED.