FILED
NOT FOR PUBLICATION OCT 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JESUS PEREZ-MONJE, No. 05-71387
Petitioner, Agency No. A92-407-684
v.
MEMORANDUM *
ERIC H. HOLDER, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 4, 2010 **
Pasadena, California
Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.
The Board of Immigration Appeals (“BIA”) erred in relying on Perez-
Monje’s failure to show prejudice as the basis for denying his motion to reopen
proceedings after an in absentia order. Such a showing is not required in this
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
context. Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 2003). Additionally, the
BIA erred in failing to consider Perez-Monje’s allegation that his attorney provided
ineffective assistance by failing to comply with the Lozada requirements in his
initial motion to reopen on November 8, 1999, see Matter of Lozada, 19 I. & N.
Dec. 637, 639 (BIA 1988), and by filing an untimely appeal to the BIA on April
25, 2000. Moreover, the BIA did not consider Perez-Monje’s argument that he
was entitled to equitable tolling of the time and number requirements for motions
to reopen. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001); see
also 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. §§ 1003.2(c)(3), 1003.23(b)(4)(ii).
The BIA is “not free to ignore arguments raised by a petitioner.” Sagaydak v.
Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005).
Additionally, the BIA did not address Perez-Monje’s eligibility for INA
§ 212(c) relief, 8 U.S.C. § 1182(c) (1994), repealed by Pub. L. 104-208, § 304(b),
110 Stat. 3009-597 (1996), in light of Matter of M-S-, 22 I. & N. Dec. 349 (BIA
1998), or Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc). We remand
to the BIA to consider these issues in the first instance. See INS v. Ventura, 537
U.S. 12, 16 (2002).
PETITION FOR REVIEW GRANTED and REMANDED.
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