Freckleton v Holder , 392 F. App'x 590 ( 2010 )

FILED
UNITED STATES COURT OF APPEALS AUG 23 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
AKOSUA AMPONSAAH No. 08-70161
FRECKLETON,
Agency No. A023-430-758
Petitioner,
v. ORDER
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
Before: CANBY, THOMAS and W. FLETCHER, Circuit Judges.
Frecµleton's petition for rehearing is granted.
The memorandum disposition filed on June 3, 2010 is withdrawn. A new
memorandum disposition will be filed concurrently with this order.
FILED
NOT FOR PUBLICATION AUG 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
AKOSUA AMPONSAAH No. 08-70161
FRECKLETON,
Agency No. A023-430-758
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010**
Before: CANBY, THOMAS and W. FLETCHER, Circuit Judges.
Aµosua Amponsaah Frecµleton, a native and citizen of Jamaica, petitions for
review of a Board of Immigration Appeals' ('BIA') order dismissing her appeal
from an immigration judge's ('IJ') decision denying her motion to reopen removal
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. y 1252.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review for abuse of discretion the denial of a motion to reopen. See Singh v.
INS, 295 F.3d 1037, 1039 (9th Cir. 2002). We grant the petition for review.
The BIA abused its discretion in concluding that Frecµleton failed to
establish ineffective assistance of counsel resulting in an exceptional circumstance
that warrants rescission of her in absentia order of removal. See Lo v. Ashcroft,
341 F.3d 934, 936-37 (9th Cir. 2003). Competent counsel would have done more
to ensure that his client was present on the day of the hearing, including, upon
reaching her telephonically, instructing her to go straight to the courthouse. See
Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004). Had he done
so, she almost certainly would have arrived while the courtroom was open and
would not have been ordered removed in absentia. See Perez v. Muµasey, 516 F.3d
770, 774 (9th Cir. 2008) ('a petitioner who arrives late for [her] immigration
hearing, but while the IJ is still in the courtroom, has not failed to appear for that
hearing.').
Frecµleton was prejudiced by her counsel's actions. See Maravilla
Maravilla, 381 F.3d at 858 (alien need not show that they would win or lose on
any claims, but that ineffective assistance may have affected proceedings).
We therefore remand for the BIA to reopen Frecµleton's case.
PETITION FOR REVIEW GRANTED; REMANDED.
2 08-70161