                                                                           FILED
                                                                            FEB 19 2010
                           NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



FABIAN CRUZ-HERNANDEZ,                           No. 05-70954

             Petitioner,                         Agency No. A078-679-743

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

             Respondent.



FABIAN CRUZ-HERNANDEZ,                           No. 05-75707

             Petitioner,                         Agency No. A078-679-743

  v.

ERIC H. HOLDER Jr., Attorney General,

             Respondent.



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

                     Argued and Submitted February 11, 2010
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: NOONAN, BERZON and IKUTA, Circuit Judges.




      The government concedes that the Immigration Judge (IJ) erred under 8

U.S.C. § 1229a(b)(5)(A) in refusing to issue Cruz-Hernandez’s removal order in

absentia, where it is undisputed that Cruz-Hernandez was not in fact present at his

hearing and there is no evidence in the record that he agreed the proceedings be

conducted in his absence, see 8 U.S.C. § 1229a(b)(2)(A). We agree, and therefore

grant Cruz-Hernandez’s petition for review of the Board of Immigration Appeals’

(BIA) denial of Cruz-Hernandez’s motion to reopen. We remand to the BIA with

directions to remand to the IJ for a new removal hearing.

      Because the IJ based his determination that Cruz-Hernandez was removable

on the sole ground that the Attorney General had “reason to believe” that Cruz-

Hernandez had been involved in illicit trafficking in a controlled or listed

substance or chemical, pursuant to 8 U.S.C. § 1182(a)(2)(C)(i), Cruz-Hernandez’s

claim that the crime for which he was indicted was not a controlled substance

offense is not germane and we do not reach it here. Nor do we reach Cruz-

Hernandez’s other claims, which are based on errors related to Cruz-Hernandez’s

absence at his prior removal hearing. Cruz-Hernandez’s remaining claims are

therefore dismissed. For the same reasons, we dismiss Cruz-Hernandez’s petition
for review of the BIA’s denial of his appeal from the IJ’s determination of

removability.

      Each party will bear its own costs on appeal.

PETITION FOR REVIEW of Appeal No. 05-75707 GRANTED in part;

DISMISSED in part; REMANDED with instructions that Cruz-Hernandez

receive a rehearing.

PETITION FOR REVIEW of Appeal No. 05-70954 DISMISSED.
