Opinion
No. 05-76220.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed June 1, 2007.
Grace White, Esq., Law Offices of Grace White, Woodland Hills, CA, for Petitioner.
CAC-District Counsel, Esq., Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, John R. Cunningham, Esq., Ann Carroll Varnon, Esq., U.S. Department of Justice, Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A79-246-937.
Before: PREGERSON, REINHARDT, and TASHIMA, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Sos Manukyan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals' order affirming without opinion an immigration judge's ("IJ") decision denying his motion to reopen deportation proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004), amended by 404 F.3d 1105 (9th Cir. 2005). We grant the petition for review.
The IJ abused his discretion in determining that Manukyan had proper notice of his remand hearing because the IJ misconstrued the record. The record shows that the handwritten portion in the notice is virtually indecipherable and did not give reasonable notice of the time of hearing. Therefore, the in absentia order is invalid. See Andia v. Ashcroft, 359 F.3d 1181, 1185 (9th Cir. 2004) (per curiam) (holding that if petitioners do not receive actual or constructive notice of deportation proceedings "it would be a violation of their rights under the Fifth Amendment of the Constitution to deport them in absentia").
Accordingly, we grant the petition for review and remand for further proceedings. INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.