Canizalez Chavez v. Holder

313 F. App'x 987

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 2, 2009
• Docket: No. 05-75930
• Status: Published

Opinion

MEMORANDUM

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Ramon Canizalez Chavez and Florencia Canizalez, husband and wife and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”)' order denying their motion to reopen based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to.reopen. Reyes v. Ashcroft, 358 F.3d 592, 595 (9th Cir.2004). We grant the petition for review and remand for further proceedings.

The BIA abused its discretion in denying petitioners’ motion to reopen because strict compliance with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), would have been futile. See Morales Apolinar v. Mukasey, 514 F.3d 893, 897 (9th Cir.2008) (“[W]here a petitioner’s attorney has been suspended after failing to respond to prior charges of ineffective assistance, it would be futile for the petitioner to inform counsel of the accusations or file a complaint.”). We therefore remand for the BIA to reconsider petitioners’ motion to reopen. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.