Sanchez v. Ashcroft

22 F. App'x 869

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 18, 2001
• Docket: No. 00-71302; I & NS No. A70-204-027
• Status: Published

Opinion

MEMORANDUM

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Luis Alberto Sanchez (“Sanchez”) petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from the Immigration Judge’s (“IJ”) denial of his motion to reopen and rescind an in absentia deportation order, and denying his motion to reopen in order to apply for adjustment of status as untimely. Sanchez failed to appear at his deportation hearing, and was deported in absentia. He sought to have the order rescinded on the ground that he failed to receive notice of the hearing. 8 U.S.C. § 1252b(c)(3); 8 C.F.R. § 3.2(c)(3)®; 8 C.F.R. § 3.23(b)(4)(iii). His motion to rescind the in absentia order was denied by the IJ on June 16, 1997. Sanchez then filed a motion to reopen his deportation proceedings for purposes of applying for adjustment of status on June 18, 1997. In its decision, the BIA states that Sanchez was required to file his motion to reopen within 90 days of the IJ’s decision of June 16, which represented the final administrative order in the case. Because the motion was filed only two days after the IJ decision, it was timely, and the BIA erred in denying it as untimely. We remand to the BIA with directions to consider on the merits Sanchez’s motion to reopen for purposes of applying for adjustment of status.

REVERSED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

John Ashcroft is substituted for his predecessor, Janet Reno, as Attorney General of the United States. Fed. R.App. P. 43(c)(2).