Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Alejandro Garcia, City of Commerce, CA, for Petitioner.
Regional Counsel, Western Region Immigration & Naturalization Service, Laguna Niguel, CA, Ronald E. LeFevre, Chief Legal Officer, Office of the District Counsel Department of Homeland Security, San Francisco, CA, Russell J.E. Verby, Barry J. Pettinato, 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.
Before CANBY, BEEZER and KOZINSKI, Circuit Judges.
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.
Alfredo Rangel-Aviles, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's ("IJ") order denying his motion to reopen and reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen or reconsider for abuse of discretion. Celis-Castellano v. Ashcroft, 298 F.3d 888, 890-91 (9th Cir.2002). We grant the petition for review.
Construing Rangel-Aviles' motion as both a motion to reconsider and a motion to reopen for ineffective assistance of counsel, the BIA denied the motion because it did not establish an error of law or fact and did not comply with Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988). Although Rangel-Aviles' motion did not comply with Lozada, the ineffective assistance of counsel is clear from the record as Rangel-Aviles' attorney never informed him of the filing deadline for his cancellation of removal application. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002) (holding that Lozada requirements need not be rigidly enforced where ineffective assistance of counsel is apparent from the record). Accordingly, the BIA abused its discretion in affirming the IJ's order denying Rangel-Aviles' motion to reopen for ineffective assistance of counsel.
In light of our disposition, we need not reach Rangel-Aviles' due process challenge.
PETITION FOR REVIEW GRANTED; REMANDED.