Ortiz v. Gonzales

FILED
NOT FOR PUBLICATION JAN 06 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ADONAY REMBERTO ORTIZ, No. 06-74882

Petitioner, Agency No. A090-137-988

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted December 14, 2010 **

Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges.

Adonay Remberto Ortiz, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s decision denying his motion to reopen removal

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.

Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007) (court has jurisdiction

over mixed question of law and fact, as long as the relevant underlying facts are

not disputed). We review for abuse of discretion the denial of a motion to reopen.

Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir. 2003). We grant the petition for

review and remand.

The BIA abused its discretion in denying Ortiz’s motion for failure to

comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA

1988), where it is undisputed that Ortiz’s attorneys’ staff told him that he need not

appear at the January 19, 2006, hearing and where Ortiz explained why he did not

file a disciplinary complaint against his attorneys. See Lo, 341 F.3d at 937-38

(strict compliance not required where it is undisputed that attorney’s office staff

told petitioner the wrong hearing date, where petitioner explained absence of bar

complaint, and where Lozada’s policy goals to discourage baseless claims and

collusion were met).

We therefore grant the petition for review and remand to the BIA for further

proceedings consistent with this disposition.

PETITION FOR REVIEW GRANTED; REMANDED.

2 06-74882