Rangel-Ledesma, et al v. Holder, No. 05-71966 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 24 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JOSE LUIS RANGEL-LEDESMA, Nos. 05-71966 05-75104 Petitioner, Agency No. A076-842-691 v. ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM * Respondent. On Petitions for Review of Orders of the Board of Immigration Appeals Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. In these consolidated petitions for review, Jose Luis Rangel-Ledesma, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals ( BIA ) order dismissing his appeal from an immigration judge s ( IJ ) * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). removal order, and the BIA s order denying his motion to reopen proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Maravilla-Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir. 2004) (per curiam). We dismiss the petition for review in No. 05-71966, and grant the petition for review in No. 05-75104. The BIA abused its discretion in determining that Rangel-Ledesma s ineffective assistance of counsel claim was not new and could have been presented during the pendency of the appeal. See 8 C.F.R. § 1003.2(c)(1) (evidence must not have been available to be presented at the former hearing ); see also Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) (explaining that 8 C.F.R. § 1003.2(c)(1) requires that the evidence must not have been available to be presented at the former hearing before the IJ). We do not address the petition for review in No. 05-71966 in light of our disposition in No. 05-75104. IN NO. 05-71966: PETITION FOR REVIEW DISMISSED. IN NO. 05-75104: PETITION FOR REVIEW GRANTED; REMANDED. 2 05-75104

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