Huerta-Lopez v. Gonzales

155 F. App'x 284

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2005
• Docket: No. 04-71107; Agency No. A76-611-031
• Status: Published

Opinion

MEMORANDUM

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Roberto Huerta-Lopez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion, Cano-Merida v. INS, 311 F.3d 960, 963 (9th Cir.2002), and we grant the petition for review.

The BIA abused its discretion when it treated Huerta-Lopez’s 2003 motion as a motion to reconsider. Because Huerta-Lopez introduced evidence of alleged ineffective assistance of counsel, the BIA “misapplied its regulations to classify [Huerta-Lopez’s] motion as a motion to reconsider” rather than as a motion to reopen. See Iturribarria v. INS, 321 F.3d 889, 894-97 (9th Cir.2003). As the BIA has not addressed Huerta-Lopez’s ineffective assistance of counsel claim, we remand for the agency to consider this issue in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18, 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 may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.