                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 16 2010

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




                            FOR THE NINTH CIRCUIT



PETRA HUIZAR ALANIZ,                             No. 05-76514

             Petitioner,                         Agency No. A076-679-926

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

             Respondent.



PETRA HUIZAR ALANIZ,                             No. 06-70754

             Petitioner,                         Agency No. A076-679-926

  v.

ERIC H. HOLDER Jr., Attorney General,

             Respondent.



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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted March 12, 2010 **
                              San Francisco, California

Before: HALL, NOONAN and CALLAHAN, Circuit Judges.

      Petra Huizar Alaniz seeks review of the Board of Immigration Appeals’

(“BIA”) denial of her motion to reopen and her motion for reconsideration. We

vacate the denials and remand.

      On May 16, 2005, the BIA dismissed Alaniz’s appeal from the Immigration

Judge’s (“IJ”) denial of her request for cancellation of removal, and granted her

sixty days in which to voluntarily depart. Although Alaniz was represented by

counsel, the BIA sent notice of its decision to Alaniz and not her attorney.

      On August 10, 2005, Alaniz filed a motion to reopen and motion to stay

removal. On October 19, 2005, the BIA denied the motions, stating that because

she had failed to depart within the sixty days allotted for her voluntary departure

she was not eligible for any relief.

      On November 15, 2005, Alaniz filed a petition for review with the Ninth

Circuit (No. 05-76514) and also filed a motion to reconsider with the BIA. In the

motion to reconsider, Alaniz asserted that the BIA had violated its own regulations

by failing to serve its May 16, 2005 decision on Alaniz’s counsel. On January 23,


        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
2006, the BIA admitted that counsel had not been served, but found that this was

no basis for reconsideration. On February 9, 2006, Alaniz filed a second petition

for review by the Ninth Circuit (No. 06-70754).

      On December 21, 2009, we issued our opinion in Hamazaspyan v. Holder,

590 F.3d 744 (9th Cir. 2009). That case concerned the notice requirements for

immigration proceedings set forth in 8 U.S.C. § 1229. The opinion states “[w]e

now hold that serving a hearing notice on an alien, but not on the alien’s counsel of

record, is insufficient when an alien’s counsel of record has filed a notice of

appearance with the immigration court.” Id. at 749. The opinion explained:

      If the case is that the alien is represented by counsel of record, then
      the government must serve one of his counsel of record. If, however,
      the alien is not represented by counsel of record, then the government
      must serve the alien. The purpose of the word “or” in the statute is to
      clarify that the immigration court is not required to send notice to both
      the alien and the alien’s counsel of record. Therefore, we hold that,
      once the alien’s counsel files an appearance before the immigration
      court, § 1229 requires the government to serve an alien’s counsel of
      record with any document related to the alien’s removal proceedings.

Id.

      We requested and received supplemental briefs on the impact of

Hamazaspyan on this case. The government responded that Hamazaspyan was

distinguishable because in that case the government had failed to show that either




                                           3
the alien or the attorney were served. The government’s supplemental brief did not

address our reasoning in Hamazaspyan.

       Although it is true that in Hamazaspyan neither the alien nor the attorney of

record were served, the opinion clearly states that “[i]f the case is that the alien is

represented by counsel of record, then the government must serve one of his

counsel of record.” Here, the BIA admits that it did not serve, but should have

served, Alaniz’s counsel.

      This case more directly concerns the provisions of 8 C.F.R. § 1292.5(a) than

8 U.S.C. § 1229, which was the subject of Hamazaspyan. Nonetheless, the

language of § 1292.5(a) – requiring that notice be “served by or upon, made by, or

requested of the attorney or representative of record, or the person himself if

unrepresented” – reflects the same directive set forth in 8 U.S.C. § 1229, and thus

it appears that the reasoning in Hamazaspyan also applies to this case. Indeed, the

language “if unrepresented” is a stronger command than the disjunctive language

in 8 U.S.C. § 1229 that we considered in Hamazaspyan.

      Accordingly, Alaniz’s petitions for review are GRANTED, the BIA’s

denials of Alaniz’s motion to reopen and motion for reconsideration are

VACATED, and this matter is REMANDED to the BIA to reconsider Alaniz’s

requests for relief in light of our opinion in Hamazaspyan, 590 F.3d 744.


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