Glenda Fortin-Rapalo v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 2021
• Docket: 20-70094
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GLENDA SUYAPA FORTIN-RAPALO; No. 20-70094 OBED ISAI AVILA-FORTIN, Agency Nos. A212-950-248 Petitioners, A212-950-249

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted September 14, 2021**

Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

Glenda Suyapa Fortin-Rapalo and Obed Isai Avila-Fortin, natives and

citizens of Honduras, petition for review of the Board of Immigration Appeals’

(“BIA”) order denying their motion to reconsider. Our jurisdiction is governed by

8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). reconsider. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We grant

the petition for review, and we remand.

The BIA abused its discretion when it denied reconsideration, in part, based

on petitioners’ failure to comply with the requirements of Matter of Lozada, 19

I&N Dec. 637 (BIA 1988), where ineffective assistance of prior counsel was

apparent from the face of the record. See Melkonian v. Ashcroft, 320 F.3d 1061,

1072 (9th Cir. 2003) (explaining that failure to comply with the Lozada

requirements is not dispositive where the ineffective assistance of counsel is plain

on the face of the administrative record); see also Tadevosyan v. Holder, 743 F.3d

1250, 1252–53 (9th Cir. 2014) (“The BIA abuses its discretion when it acts

arbitrarily, irrationally, or contrary to the law, and when it fails to provide a

reasoned explanation for its actions.” (internal citations and quotation marks

omitted)). Thus, we grant the petition for review and remand to the agency for

further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S.

12, 16-18 (2002) (per curiam).

The parties shall bear their own costs on appeal.

Petitioners’ removal is stayed pending a decision by the BIA.

PETITION FOR REVIEW GRANTED; REMANDED.

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