Chin Yan Chou v. Mukasey

270 F. App'x 724

Opinion

MEMORANDUM

**

Chin Yan Chou, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming without opinion the decision of an immigration judge denying his motion to reopen proceedings in which he was ordered deported in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing for abuse of discretion, Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir.2003), we grant the petition and remand for further proceedings.

The agency abused its discretion in denying Chou’s motion to reopen because, regardless of whether Chou received proper oral notice of his 1993 hearing, the bar to relief under former 8 U.S.C. § 1252b(e)(l) does not apply to asylum claims. See 8 U.S.C. § 1252b(e)(5) (repealed 1996).

The BIA failed to address Chou’s contention that he received ineffective legal assistance. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.2005) (“[T]he BIA [is] not free to ignore arguments raised by a petitioner.”). We remand for the agency to evaluate Chou’s ineffective assistance claim and, if necessary, to determine whether ineffective assistance prevented him from filing a timely asylum application. See generally INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

The agency did not reach the merits of Chou’s asylum claim. Therefore, we do not consider the asylum claim. Id.

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.