FILED
NOT FOR PUBLICATION MAR 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PETRA HUIZAR ALANIZ, No. 05-76514
Petitioner, Agency No. A076-679-926
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
PETRA HUIZAR ALANIZ, No. 06-70754
Petitioner, Agency No. A076-679-926
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted March 12, 2010 **
San Francisco, California
Before: HALL, NOONAN and CALLAHAN, Circuit Judges.
Petra Huizar Alaniz seeks review of the Board of Immigration Appeals’
(“BIA”) denial of her motion to reopen and her motion for reconsideration. We
vacate the denials and remand.
On May 16, 2005, the BIA dismissed Alaniz’s appeal from the Immigration
Judge’s (“IJ”) denial of her request for cancellation of removal, and granted her
sixty days in which to voluntarily depart. Although Alaniz was represented by
counsel, the BIA sent notice of its decision to Alaniz and not her attorney.
On August 10, 2005, Alaniz filed a motion to reopen and motion to stay
removal. On October 19, 2005, the BIA denied the motions, stating that because
she had failed to depart within the sixty days allotted for her voluntary departure
she was not eligible for any relief.
On November 15, 2005, Alaniz filed a petition for review with the Ninth
Circuit (No. 05-76514) and also filed a motion to reconsider with the BIA. In the
motion to reconsider, Alaniz asserted that the BIA had violated its own regulations
by failing to serve its May 16, 2005 decision on Alaniz’s counsel. On January 23,
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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2006, the BIA admitted that counsel had not been served, but found that this was
no basis for reconsideration. On February 9, 2006, Alaniz filed a second petition
for review by the Ninth Circuit (No. 06-70754).
On December 21, 2009, we issued our opinion in Hamazaspyan v. Holder,
590 F.3d 744 (9th Cir. 2009). That case concerned the notice requirements for
immigration proceedings set forth in 8 U.S.C. § 1229. The opinion states “[w]e
now hold that serving a hearing notice on an alien, but not on the alien’s counsel of
record, is insufficient when an alien’s counsel of record has filed a notice of
appearance with the immigration court.” Id. at 749. The opinion explained:
If the case is that the alien is represented by counsel of record, then
the government must serve one of his counsel of record. If, however,
the alien is not represented by counsel of record, then the government
must serve the alien. The purpose of the word “or” in the statute is to
clarify that the immigration court is not required to send notice to both
the alien and the alien’s counsel of record. Therefore, we hold that,
once the alien’s counsel files an appearance before the immigration
court, § 1229 requires the government to serve an alien’s counsel of
record with any document related to the alien’s removal proceedings.
Id.
We requested and received supplemental briefs on the impact of
Hamazaspyan on this case. The government responded that Hamazaspyan was
distinguishable because in that case the government had failed to show that either
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the alien or the attorney were served. The government’s supplemental brief did not
address our reasoning in Hamazaspyan.
Although it is true that in Hamazaspyan neither the alien nor the attorney of
record were served, the opinion clearly states that “[i]f the case is that the alien is
represented by counsel of record, then the government must serve one of his
counsel of record.” Here, the BIA admits that it did not serve, but should have
served, Alaniz’s counsel.
This case more directly concerns the provisions of 8 C.F.R. § 1292.5(a) than
8 U.S.C. § 1229, which was the subject of Hamazaspyan. Nonetheless, the
language of § 1292.5(a) – requiring that notice be “served by or upon, made by, or
requested of the attorney or representative of record, or the person himself if
unrepresented” – reflects the same directive set forth in 8 U.S.C. § 1229, and thus
it appears that the reasoning in Hamazaspyan also applies to this case. Indeed, the
language “if unrepresented” is a stronger command than the disjunctive language
in 8 U.S.C. § 1229 that we considered in Hamazaspyan.
Accordingly, Alaniz’s petitions for review are GRANTED, the BIA’s
denials of Alaniz’s motion to reopen and motion for reconsideration are
VACATED, and this matter is REMANDED to the BIA to reconsider Alaniz’s
requests for relief in light of our opinion in Hamazaspyan, 590 F.3d 744.
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