                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 14 2010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



JAVIER JUAREZ,                                   No. 06-72387

              Petitioner,                        Agency No. A091-815-577

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

              Respondent.



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

                        Argued and Submitted April 8, 2010
                               Pasadena, California

Before: FRIEDMAN,** D.W. NELSON and REINHARDT, Circuit Judges.

       Once again we are presented with a case in which an individual was ordered

deported in abstentia, through no fault of his own, but rather because of his

immigration counsel’s conduct: this time his attorney failed to notify him that his

hearing date on October 21, 2005 had been cancelled because of the attorney’s

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Daniel M. Friedman, United States Circuit Judge for
the Federal Circuit, sitting by designation.
failure to file the necessary application; that he had been ordered removed; that the

attorney had then succeeded in reopening his case; and that a new calendar date

had been scheduled for September 13, 2005. None of these facts were made

known to the petitioner by his counsel or otherwise.

      The BIA held that these circumstances, including the fact that Juarez’s

counsel failed to notify him of the September 13, 2005 hearing, did not constitute

“exceptional circumstances” that excused Juarez’s failure to appear at that hearing,

or warranted rescission of the in abstentia removal order and reopening of the case.

But see Lo v. Ashcroft, 341 F.3d 934 (9th Cir. 2003) (holding that a lawyer’s

secretary’s failure to inform a petitioner of the correct date of an immigration court

hearing, which resulted in the petitioner’s nonappearance, constituted ineffective

assistance of counsel and therefore “exceptional circumstances” requiring the

rescission of an in abstentia removal order).

      The BIA stated that it was “unable to find the respondent demonstrated a

clear case of ineffective assistance of counsel” for two reasons. First, it stated that

Juarez’s attorney and his staff “made several attempts to notify [Juarez] of the

hearing, but were unable to contact him.” This reason is contradicted by the

undisputed evidence in the record. At the most, the evidence reflects that counsel’s

staff left a couple of messages for Juarez after the new hearing date was established


                                           2
but that in none of these messages was Juarez advised of any change in the hearing

date, or that there would be any hearing before the October 21, 2005 date of which

he had previously been personally informed by the IJ. Although the IJ’s order

states that counsel said that he mailed a letter to Juarez in an attempt to notify him

of his new hearing date, this is also obviously erroneous; the letter could not have

mentioned a new hearing date because it was mailed to Juarez on July 20, before

the new hearing date had been set. With respect to the phone messages, we also

note that it appears highly improbable that counsel’s staff would have been unable

to reach Juarez by phone, as when it tried to do so on the morning of the September

13 hearing, it reached him immediately, without any difficulty, and Juarez came

without delay to the immigration court.

      Second, the BIA stated that Juarez “was derelict by not maintaining contact

with his attorney.” The record, however, shows unequivocally that Juarez “worked

with” his counsel “to prepare his applications for relief and gather his supporting

documents and other evidence,” and contains no suggestion or implication that

Juarez failed to do anything necessary to the presentation of his petition. It is also

undisputed that Juarez “came in to [the attorney’s] office to drop off some

documents” during the week preceding the September 13 hearing, but that he was

not told, even then, about the hearing or his obligation to be there.


                                           3
Both of the reasons that the BIA advanced in support of its denial of Juarez’s

motion to reopen are directly controverted by the undisputed facts of the record

and neither supports the BIA’s action.

      The other argument relied on by the IJ, but not by the BIA, is that Juarez

failed to show “exceptional circumstances” because he failed to comply with

Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA), aff’d, 857 F.2d 10 (1st Cir.

1988). We rejected a similar argument in Lo. 341 F.3d at 937. An alien seeking

to establish “ineffective assistance of counsel” and thus “exceptional

circumstances” is not required to follow mechanistically each of the procedures set

forth in Lozada. Id. Compliance with each of the Lozada procedures is

unnecessary when, as in Juarez’s case, the ineffective assistance of counsel is

“plain on the face of the administrative record,” Escobar-Grijalva v. INS, 206 F.3d

1331, 1335 (9th Cir. 2000), which demonstrates that counsel “completely failed in

his duties to his client.” Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000).

Nor is such compliance necessary when, as in Juarez’s case, it is possible “to

assess the bona fides of the . . . ineffective assistance claims asserted, to discourage

baseless allegations and meritless claims, and to hold attorneys to the appropriate

standards of performance.” Lo, 341 F.3d at 937.




                                           4
      Juarez clearly established ineffective assistance of counsel and therefore

“exceptional circumstances” warranting reopening and the BIA abused its

discretion in denying his motion for reopening. See Rodriguez-Lariz v. INS, 282

F.3d 1218, 1222 (9th Cir. 2002). Accordingly, we grant Juarez’s petition and

remand this case for further proceedings.

      GRANTED and REMANDED.




                                            5
