Sallehi v. Gonzales

Ninth Circuit

Sallehi v. Gonzales

141 F. App'x 682

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 19, 2005

DocketNo. 03-74563

StatusPublished

This text of 141 F. App'x 682 (Sallehi v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sallehi v. Gonzales, 141 F. App'x 682 (9th Cir. 2005).

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Opinion

MEMORANDUM

**

Gholam Farooq Sallehi and his family (“the family”) petitioned this court for review of a decision by the Board of Immigration Appeals dismissing the family’s appeal of an Immigration Judge’s (“IJ’s”) denial of its motion to reopen exclusion proceedings entered in absentia. We find that the family has substantially complied with the intent and purpose of Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988), and that the ineffectiveness of the family’s counsel is apparent on the face of the administrative record. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002). Even if the government’s acquiescence to the motion to reopen at the IJ level is insufficient to constitute joinder, a denial based on 8 C.F.R. § 1003.23(b)(3) would be inconsistent with our case law, which provides that petitioners need not demonstrate prejudice when an in absentia removal Order results from ineffective assistance of counsel. See, e.g., Lo v. Ashcroft, 341 F.3d 934, 938 n. 6 (9th Cir.2003).

We remand to the BIA pursuant to INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002), for proceedings consistent with this disposition.

PETITION 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.

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MEMORANDUM

**

Gholam Farooq Sallehi and his family (“the family”) petitioned this court for review of a decision by the Board of Immigration Appeals dismissing the family’s appeal of an Immigration Judge’s (“IJ’s”) denial of its motion to reopen exclusion proceedings entered in absentia. We find that the family has substantially complied with the intent and purpose of Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988), and that the ineffectiveness of the family’s counsel is apparent on the face of the administrative record. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002). Even if the government’s acquiescence to the motion to reopen at the IJ level is insufficient to constitute joinder, a denial based on 8 C.F.R. § 1003.23(b)(3) would be inconsistent with our case law, which provides that petitioners need not demonstrate prejudice when an in absentia removal Order results from ineffective assistance of counsel. See, e.g., Lo v. Ashcroft, 341 F.3d 934, 938 n. 6 (9th Cir.2003).

We remand to the BIA pursuant to INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002), for proceedings consistent with this disposition.

PETITION 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.

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