concurring:
I concur in the Memorandum, but write separately to note that our conclusion that the BIA abused its discretion in denying the motion to reopen is premised on Avagyan v. Holder, 646 F.3d 672 (9th Cir. 2011), which was not on the books when the BIA decided Mendoza-Ortiz’s motion to reopen.
I also write to express my empathy with the IJ, who explained to the alien exactly what he needed to do as far as the fingerprints were concerned, only to be undermined by the alien’s own lawyer. The lawyer’s conduct here was inexcusable, but the client’s reliance on his lawyer was not. Under these circumstances, the alien should have been given another chance to properly submit his fingerprints. See Cui v. Mukasey, 538 F.3d 1289 (9th Cir.2008), decided after this matter was before the IJ.