Shahid v. Holder

Ninth Circuit

Shahid v. Holder

330 F. App'x 683

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 26, 2009

DocketNo. 05-77256

StatusPublished

This text of 330 F. App'x 683 (Shahid v. Holder) 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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Shahid v. Holder, 330 F. App'x 683 (9th Cir. 2009).

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Opinion

MEMORANDUM

**

Mohammed Shahid, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we grant the petition for review and remand.

The agency abused its discretion in denying Shahid’s motion to reopen because Shahid stated in his affidavit that his former attorney advised him of the wrong hearing date, see Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir.2005) (“facts presented in affidavits supporting a motion to reopen must be accepted as true unless inherently unbelievable”), and Shahid was not required to demonstrate prejudice as his removal hearing was conducted in ab-sentia, see Lo v. Ashcroft, 341 F.3d 934, 939 n. 6 (9th Cir.2003) (no showing of prejudice required where motion seeks to [684]*684reopen pi’oceedings conducted in absentia based on ineffective assistance of counsel).

Because Shahid demonstrated that he failed to attend his removal hearing due to ineffective assistance of counsel, which qualifies as “exceptional circumstances,” the removal order entered in absentia should be rescinded. See id. at 935.

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.

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MEMORANDUM

**

Mohammed Shahid, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we grant the petition for review and remand.

The agency abused its discretion in denying Shahid’s motion to reopen because Shahid stated in his affidavit that his former attorney advised him of the wrong hearing date, see Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir.2005) (“facts presented in affidavits supporting a motion to reopen must be accepted as true unless inherently unbelievable”), and Shahid was not required to demonstrate prejudice as his removal hearing was conducted in ab-sentia, see Lo v. Ashcroft, 341 F.3d 934, 939 n. 6 (9th Cir.2003) (no showing of prejudice required where motion seeks to [684]*684reopen pi’oceedings conducted in absentia based on ineffective assistance of counsel).

Because Shahid demonstrated that he failed to attend his removal hearing due to ineffective assistance of counsel, which qualifies as “exceptional circumstances,” the removal order entered in absentia should be rescinded. See id. at 935.

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.

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330 F. App'x 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shahid-v-holder-ca9-2009.

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