                                                                        FILED
                     UNITED STATES COURT OF APPEALS                      AUG 23 2010

                                                                     MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                     U.S . CO U RT OF AP PE A LS




AKOSUA AMPONSAAH                                  No. 08-70161
FRECKLETON,
                                                  Agency No. A023-430-758
              Petitioner,

  v.                                              ORDER

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



Before:      CANBY, THOMAS and W. FLETCHER, Circuit Judges.

       Frecµleton's petition for rehearing is granted.

       The memorandum disposition filed on June 3, 2010 is withdrawn. A new

memorandum disposition will be filed concurrently with this order.
                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 23 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



AKOSUA AMPONSAAH                                 No. 08-70161
FRECKLETON,
                                                 Agency No. A023-430-758
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                             Submitted May 25, 2010**

Before:       CANBY, THOMAS and W. FLETCHER, Circuit Judges.

       Aµosua Amponsaah Frecµleton, a native and citizen of Jamaica, petitions for

review of a Board of Immigration Appeals' ('BIA') order dismissing her appeal

from an immigration judge's ('IJ') decision denying her motion to reopen removal

proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. y 1252.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review for abuse of discretion the denial of a motion to reopen. See Singh v.

INS, 295 F.3d 1037, 1039 (9th Cir. 2002). We grant the petition for review.

      The BIA abused its discretion in concluding that Frecµleton failed to

establish ineffective assistance of counsel resulting in an exceptional circumstance

that warrants rescission of her in absentia order of removal. See Lo v. Ashcroft,

341 F.3d 934, 936-37 (9th Cir. 2003). Competent counsel would have done more

to ensure that his client was present on the day of the hearing, including, upon

reaching her telephonically, instructing her to go straight to the courthouse. See

Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004). Had he done

so, she almost certainly would have arrived while the courtroom was open and

would not have been ordered removed in absentia. See Perez v. Muµasey, 516 F.3d

770, 774 (9th Cir. 2008) ('a petitioner who arrives late for [her] immigration

hearing, but while the IJ is still in the courtroom, has not failed to appear for that

hearing.').

      Frecµleton was prejudiced by her counsel's actions. See Maravilla

Maravilla, 381 F.3d at 858 (alien need not show that they would win or lose on

any claims, but that ineffective assistance may have affected proceedings).

      We therefore remand for the BIA to reopen Frecµleton's case.

      PETITION FOR REVIEW GRANTED; REMANDED.


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