Unpublished Disposition, 935 F.2d 273 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 273 (9th Cir. 1989)

Tosun AMETOVSKI, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 90-70080.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 1990.Decided June 10, 1991.

Before TANG, O'SCANNLAIN and LEAVY, Circuit Judges.


MEMORANDUM* 

Tosun Ametovski petitions for review of the Board of Immigration Appeals' ("Board" or "BIA") decisions summarily dismissing his appeal from an order of deportation and denying his motion to reopen. We grant the petition for review.

DISCUSSION

Ametovski first challenges the Board's summary dismissal of his appeal as "moot as abandoned." Ametovski contends that under the applicable regulations, the Board does not have the power to dismiss his appeal on this ground.

This court has not clearly articulated the standard for reviewing the Board's summary dismissal of appeals under the regulations. Martinez-Zelaya v. INS, 841 F.2d 294, 295 (9th Cir. 1988). We have analyzed, however, whether such summary dismissals are "appropriate." Id.; Reyes-Mendoza v. INS, 774 F.2d 1364, 1365 (9th Cir. 1985).

The order dismissing Ametovski's appeal stated in its entirety: "The appeal is dismissed as moot as abandoned. The respondent has provided no address at which any decision on the merits can be effectively served." As we have previously stated, "our review is confined to the BIA's decision and the bases upon which the BIA relied." Martinez-Zelaya, 841 F.2d at 296 (citations omitted). Under the circumstances of this case, we find that the Board's reason for dismissal, "moot as abandoned," is not supported by the record.

Ametovski filed a Notice of Appeal from the immigration judge's order of deportation on May 4, 1987. The Notice of Appeal was returned to Ametovski because he had failed to indicate that he had served the INS. A second Notice of Appeal, which incorporated the first Notice of Appeal by reference, was executed on behalf of Ametovski by his new attorney, R. Sam Pestinger, on June 3, 1987. The second Notice of Appeal was accepted for filing by the BIA on June 5, 1987. The BIA then mailed a copy of the transcript to Ametovski on July 12, 1988. The transcript was returned because Ametovski had moved and left no forwarding address. The Board had not mailed a copy of the transcript to Ametovski's counsel, Pestinger, because the record allegedly did not contain a Notice of Appearance filed by him. A Notice of Appearance was subsequently received from Pestinger on October 24, 1988. Nearly ten months later, Pestinger was served with a copy of the transcript on August 18, 1989. However, Pestinger informed the Board on August 21, 1989, that he no longer represented Ametovski, that Ametovski had retained new counsel, and that he had not had contact with Ametovski for almost a year. Pestinger formally moved to withdraw from the case on September 15, 1989. The Board then dismissed Ametovski's appeal on September 25, 1989.

We conclude that the record does not support the Board's finding that Ametovski had abandoned his appeal to the Board. The INS points to Ametovski's failure to keep it apprised of his change of address and his failure to keep his own attorney apprised of his whereabouts in support of the Board's order of dismissal. We find neither of these grounds sufficient to support the finding that Ametovski had abandoned his appeal.

First, in connection with Ametovski's alleged failure to keep the INS apprised of his change of address, we note that an alien residing in the United States is statutorily required to inform the Attorney General in writing "of each change of address and new address within ten days from the date of such change." 8 U.S.C. § 1305(a) (1988); see also 8 C.F.R. Sec. 265.1 (1990). Nonetheless, we do not find that the facts surrounding Ametovski's alleged failure to comply with the statute support the Board's finding that Ametovski had abandoned his appeal.1  Although the INS alleges it had no record of Ametovski's change of address, it indicated that "it is believed he still resides in Anchorage." AR 153. The INS does not assert and the record does not indicate whether a simple check of the Anchorage telephone directory, which could have disclosed Ametovski's new address, was undertaken by the BIA. In addition, at the time of Ametovski's alleged failure to apprise the INS of his change of address, he was represented by Pestinger. We believe that an alien's representation by counsel militates against a presumption that he has abandoned his appeal. Hence, we conclude that the facts surrounding Ametovski's failure to comply with section 1305(a) do not support the finding that Ametovski had abandoned his appeal.

Second, we reject the INS' assertion that the fact that Pestinger indicated in August 1989 that he no longer represented Ametovski and did not know of his whereabouts supports the Board's finding that the appeal was abandoned. Pestinger filed a Notice of Appearance with the Board on October 24, 1988. He was not served with a copy of the transcript, however, until August 18, 1989, nearly ten months later. At that time, Pestinger informed the Board on August 21, 1989, that he no longer represented Ametovski, and that:

During my last contact with Mr. Ametovski, he informed me he was in the process of seeking other counsel and that I was to take no further action on his behalf. It was my understanding that he was going to retain, once again, Attorney Keith Bell.

AR 149. We conclude from Pestinger's letter that the fact that he no longer knew of Ametovski's whereabouts does not support the Board's finding that Ametovski had abandoned his appeal. On the contrary, Pestinger stated that he did not know of Ametovski's whereabouts because he no longer represented Ametovski and indicated that Ametovski was in the process of seeking other counsel.

Accordingly, we conclude that the record does not support the Board's finding that Ametovski had abandoned his appeal. We therefore vacate the order dismissing Ametovski's appeal and remand the case to the Board for further proceedings.2 

PETITION GRANTED.

 *

This case is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The INS does not argue that failure to comply with section 1305(a) in itself would support a finding that an alien has abandoned his appeal

 2

We need not reach Ametovski's challenge to the denial of his motion to reopen