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Monjaraz-Munoz v. INS

United States Court of Appeals for the Ninth Circuit

February 7, 2003, Argued and Submitted, Pasadena, California ; April 28, 2003, Filed

No. 02-70227

Opinion

AMENDED OPINION

HALL, Circuit Judge:

In this petition for review from a decision of the Board of Immigration Appeals (BIA), we deal with the extent to which ineffective assistance of counsel may constitute "exceptional circumstances . . . beyond the control of the alien," 8 U.S.C. § 1229a(e)(1), requiring rescission of an in absentia deportation order and the reopening of immigration proceedings. Juan Monjaraz-Munoz ("Monjaraz") was ordered deported in absentia after he did not appear at his deportation hearing. He filed a motion to reopen the proceedings before the BIA. Monjaraz claims that he did not appear at the hearing because he was advised by an agent of [*2]  his attorney to cross the border into Mexico the day before the hearing. A panel of the BIA found that Monjaraz had complied with the procedural requirements for making out a case of ineffective assistance of counsel required by its decision in In re Lozada, 19 I. & N. Dec. 637 (BIA), aff'd, 857 F.2d 10 (1st Cir. 1988). The panel, with one Board Member dissenting, nevertheless held that Monjaraz's reasons for not showing up at his hearing did not amount to "exceptional circumstances . . . beyond the control of the alien." 8 U.S.C. § 1229a(e)(1). It therefore refused to rescind the deportation order and reopen the proceedings. Monjaraz timely petitioned for review before this court.

We have jurisdiction under 8 U.S.C. § 1252(b). Because we find that Monjaraz's reasons for failing to appear at his hearing constitute exceptional circumstances beyond his control, we GRANT the petition for review and REMAND for further proceedings.

BACKGROUND

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2003 U.S. App. LEXIS 16271 *

JUAN MONJARAZ-MUNOZ, Petitioner. v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Subsequent History:  [*1]  As Amended August 8, 2003.

Prior History: Petition for Review of an Order of the Board of Immigration Appeals. INS No. A70-175-552.

Monjaraz-Munoz v. INS, 327 F.3d 892, 2003 U.S. App. LEXIS 8006 (9th Cir., 2003)

Disposition: Petition for review granted and remanded.

CORE TERMS

exceptional circumstances, alien, declaration, visa, deportation, allegations, proceedings, advice, border, immigration, detained, passport, reopen, absentia, ineffective assistance of counsel, motion to reopen, credibility

Civil Procedure, Appeals, Standards of Review, De Novo Review, Immigration Law, Deportation & Removal, Administrative Appeals, General Overview, Abuse of Discretion, Relief From Deportation & Removal, Administrative Law, Judicial Review, Reviewability, Factual Determinations, Substantial Evidence, Judicial Proceedings, Scope of Review, Duties & Rights of Noncitizens, Legal Representation, Constitutional Law, Fundamental Rights, Criminal Process, Assistance of Counsel, Administrative Proceedings, Proceedings In Absentia, Rights of Respondent, Right to Representation by Counsel, Admission of Immigrants & Nonimmigrants, Visa Eligibility & Issuance, Medical Examinations, Criminal Law & Procedure, Counsel, Right to Counsel, Governments, Legislation, Statutory Remedies & Rights