Claudio Flores v. Eric Holder, Jr. , 535 F. App'x 563 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CLAUDIO ADALBERTO FLORES, No. 10-73703
Petitioner, Agency No. A094-833-722
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Claudio Adalberto Flores, a native and citizen of El Salvador, petitions for
review of the Board of Immigrations Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) order denying his motion to reopen removal
proceedings held in absentia. We have jurisdiction under 8 U.S.C. § 1252. We
*
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).
review for abuse of discretion the denial of a motion to reopen. Celis-Castellano v.
Ashcroft, 298 F.3d 888, 890-91 (9th Cir. 2002). We grant the petition and remand
for further proceedings.
Substantial evidence does not support the IJ’s findings that there was no
evidence that Flores had been diagnosed with a mental health disorder or that his
mental health problems prevented him from attending his hearing. The record
indicates that Flores was diagnosed as psychotic but refused treatment and that he
told his mother he did not have to attend his hearing. Because the IJ relied on
unsupported findings in reaching the conclusion that Flores failed to establish
“exceptional circumstances” excusing his failure to appear, see 8 U.S.C.
§ 1229a(b)(5)(C), we remand to the BIA for further proceedings consistent with
this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam);
Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000) (stating that “exceptional
circumstances” determination requires consideration of totality of circumstances
and particularized facts presented in each case).
In light of our disposition, we do not address Flores’ remaining contentions.
PETITION FOR REVIEW GRANTED; REMANDED.
2 10-73703