                                                                           FILED
                                NOT FOR PUBLICATION                         OCT 14 2010

                                                                       MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



JESUS PEREZ-MONJE,                                  No. 05-71387

            Petitioner,                             Agency No. A92-407-684

  v.
                                                    MEMORANDUM *
ERIC H. HOLDER, Attorney General,

            Respondent.



                          On Petition for Review of an Order of the
                               Board of Immigration Appeals

                                Submitted October 4, 2010 **
                                   Pasadena, California

Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.

       The Board of Immigration Appeals (“BIA”) erred in relying on Perez-

Monje’s failure to show prejudice as the basis for denying his motion to reopen

proceedings after an in absentia order. Such a showing is not required in this



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
context. Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 2003). Additionally, the

BIA erred in failing to consider Perez-Monje’s allegation that his attorney provided

ineffective assistance by failing to comply with the Lozada requirements in his

initial motion to reopen on November 8, 1999, see Matter of Lozada, 19 I. & N.

Dec. 637, 639 (BIA 1988), and by filing an untimely appeal to the BIA on April

25, 2000. Moreover, the BIA did not consider Perez-Monje’s argument that he

was entitled to equitable tolling of the time and number requirements for motions

to reopen. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001); see

also 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. §§ 1003.2(c)(3), 1003.23(b)(4)(ii).

The BIA is “not free to ignore arguments raised by a petitioner.” Sagaydak v.

Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005).

      Additionally, the BIA did not address Perez-Monje’s eligibility for INA

§ 212(c) relief, 8 U.S.C. § 1182(c) (1994), repealed by Pub. L. 104-208, § 304(b),

110 Stat. 3009-597 (1996), in light of Matter of M-S-, 22 I. & N. Dec. 349 (BIA

1998), or Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc). We remand

to the BIA to consider these issues in the first instance. See INS v. Ventura, 537

U.S. 12, 16 (2002).

      PETITION FOR REVIEW GRANTED and REMANDED.




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