Carlos Perez Castellanos v. Loretta E. Lynch , 649 F. App'x 500 ( 2016 )

FILED
NOT FOR PUBLICATION MAY 02 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS A. PEREZ CASTELLANOS, No. 14-72933
Petitioner, Agency No. A075-666-517
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 26, 2016**
Before: McKEOWN, WARDLAW, and PAEZ, Circuit Judges.
Carlos A. Perez Castellanos, 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
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
We review for abuse of discretion the denial of a motion to reopen. Avagyan v.
Holder, 646 F.3d 672, 674 (9th Cir. 2011). We grant the petition for review and
remand.
The agency abused its discretion in denying Perez Castellanos’ motion to
reopen on the basis that he did not establish the due diligence necessary for
equitable tolling of the motion to reopen filing deadline. Perez Castellanos
attempted to redress his failure to appear with his attorney, and reasonably believed
that his attorney had administratively closed his case based on his Temporary
Protected Status (“TPS”) where Perez Castellanos’ TPS was renewed for the
subsequent six years. See id. at 679 (the question of due diligence depends on
when a reasonable person would suspect his attorney’s misconduct and whether the
petitioner then took reasonable steps to investigate it or pursue immigration relief,
where “[t]ypically, an alien is diligent if he continues to pursue relief and relies on
the advice of counsel as to the means of obtaining that relief”); Mejia-Hernandez v.
Holder, 633 F.3d 818, 824-25 (petitioner was diligent when, after his motion was
denied for lack of a filing fee, he relied on counsel’s incorrect assurance that it was
the immigration court’s mistake and that he would remedy the situation).
Accordingly, we grant Perez Castellanos’ petition and remand to the BIA for
2 14-72933
further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED; REMANDED.
3 14-72933