Tum v. Gonzales

133 F. App'x 371

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 2005
• Docket: No. 03-73712
• Status: Published

Opinion

MEMORANDUM

***

Florencia Turn, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal as untimely. We have jurisdiction under the transitional rules pursuant to former 8 U.S.C. § 1105a(a). Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We review the BIA’s decision for abuse of discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We grant in part and dismiss in part the petition for review.

We conclude that the BIA abused its discretion in failing to construe Turn’s untimely notice of appeal as a motion to reopen, where she specifically requested the BIA to reopen the case for ineffective assistance of counsel and then provided evidence of her attempts to comply with the requirements set forth in Matter of Lozada, 19 I & N Dec. 637, 639 (BIA 1988). As a result, the BIA improperly focused on whether there were exceptional circumstances excusing the late filing, rather than considering whether ineffective assistance of Turn’s counsel warranted reopening. We therefore remand to the BIA for consideration of whether Turn has met the criteria for reopening and if so, whether the BIA should favorably exercise its discretion to reopen Turn’s deportation proceedings. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 (9th Cir.2001).

Because we lack jurisdiction to review the immigration judge’s decision, we dismiss that portion of the petition for review. See Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir.1988).

PETITION FOR REVIEW GRANTED in part; DISMISSED in part; 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 Ninth Circuit Rule 36-3.