Mencos Borrayo v. Holder , 380 F. App'x 709 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JULIO EUGENIO MENCOS BORRAYO, Nos. 07-73166
08-70982
Petitioner,
Agency No. A070-084-394
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
In these consolidated petitions for review, Julio Eugenio Mencos Borrayo, a
native and citizen of Guatemala, petitions for review of the Board of Immigration
Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s (“IJ”)
*
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).
order of removal and denying his subsequent motion to reopen based on ineffective
assistance of counsel. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the BIA’s denial of a motion to reopen and review de novo
legal and constitutional claims, including claims of ineffective assistance of
counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). In 07-
73166, we grant the petition for review and remand. In 08-70982, we grant in part
and dismiss in part the petition for review and remand.
The agency did not have the benefit of our decision in Chaly-Garcia v.
United States, 508 F.3d 1201 (9th Cir. 2007), when it denied Mencos Borrayo’s
application for special rule cancellation of removal. We therefore remand for the
agency to consider Mencos Borrayo’s application in light of this intervening case.
The BIA abused its discretion in denying Mencos Borrayo’s motion to
reopen by requiring strict compliance with the procedural requirements set forth in
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The ineffective assistance of
his prior counsel was plain on the face of the record where prior counsel failed to
either withdraw or pursue Mencos Borrayo’s pending asylum application. See
Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002).
The BIA failed to address Mencos Borrayo’s contentions, raised in his
motion to reopen, that the IJ violated due process by failing to adjudicate his
2 08-70982
asylum application. We remand for the BIA consider this contention in the first
instance. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007).
We lack jurisdiction to review Mencos Borrayo’s remaining contentions
because he failed to exhaust them before the agency. See Barron v. Ashcroft, 358
F.3d 674, 678 (9th Cir. 2004).
In No. 07-73166: PETITION FOR REVIEW GRANTED;
REMANDED. Each party shall bear its own costs in this petition for review.
In No. 08-70982: PETITION FOR REVIEW GRANTED in part;
DISMISSED in part; REMANDED. Each party shall bear its own costs in
this petition for review.
3 08-70982