Argued and Submitted Aug. 28, 2013.
Isaiah Costas-Barofsky (argued) and Alexis Diamond (argued) under the supervision of Andrew Knapp, Southwestern Law School, Los Angeles, CA, for Petitioner.
Yedidya Cohen (argued), Stuart F. Delery, S. Nicole Nardone, and Anthony P. Nicastro, Department of Justice, Washington, D.C., for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A096-064-471.
Before: DIARMUID F. O'SCANNLAIN, CARLOS T. BEA, and MORGAN CHRISTEN, Circuit Judges.
CHRISTEN, Circuit Judge:
Jose Miguel Euceda Hernandez, a citizen of Honduras, filed a motion to reopen removal proceedings with the Board of Immigration Appeals (" the Board" ) after the Board dismissed his appeal for lack of jurisdiction. The Board dismissed his motion to reopen for lack of jurisdiction pursuant to its " place-of-filing" rule. Euceda Hernandez petitions for review. We have jurisdiction over this appeal under 8 U.S.C. § 1252(a)(1). We grant the petition and remand this case to the Board.
Euceda Hernandez, a citizen of Honduras, entered the United States in 1992. In October 2002, he filed an application for asylum with the Immigration and Naturalization Service (" INS" ). The INS issued a notice to appear in December 2002, charging that Euceda Hernandez was removable under 8 U.S.C. § 1182(a)(6)(A)(i) for having entered the United States without admission or parole. Euceda Hernandez conceded removability but sought cancellation of removal or, alternatively, voluntary departure.
In August 2004, an immigration judge denied Euceda Hernandez's application for cancellation of removal. Any appeal was due by September 8, 2004.
Euceda Hernandez, proceeding pro se, sent notice of appeal on September 8, 2004. The appeal was received and filed on September 9, 2004. The Board ruled that the immigration judge's decision had become final because Euceda Hernandez's appeal was one day late. The Board dismissed Euceda Hernandez's appeal for lack of jurisdiction. The Board's order also informed Euceda Hernandez that the Board could entertain a motion to reconsider, but that any other motion, including a motion to reopen, had to be filed with the immigration judge.
Notwithstanding the Board's instructions, Euceda Hernandez attempted to re-file his notice of appeal with Board in December 2004, along with a motion to accept a late filing. The Board treated Euceda Hernandez's filing as a motion to reconsider " [i]nasmuch as it asserts the appeal, filed one day late, should be accepted as timely." But the Board ruled that Euceda Hernandez's filing, construed as a motion to reconsider, was itself untimely, and the Board denied the motion to reconsider.
In April 2011, Euceda Hernandez, still pro se, filed a motion to reopen with the Board. He alleged ineffective assistance of counsel during proceedings before the immigration court in 2004. The Board determined it did not have jurisdiction over the motion to reopen pursuant to its interpretation of 8 C.F.R. § 1003.2(a). The Board's interpretation, sometimes dubbed its " place-of-filing" rule, provides that a motion to reopen must be filed with the ...