Barkinado Bocoum, Petitioner, v. Immigration and Naturalization Service, Respondent, 103 F.3d 137 (9th Cir. 1996)

MEMORANDUM^** 

INTRODUCTION

Petitioner Barkinado Bocoum was notified of a deportation hearing but claims he failed to appear because of mistakes made by his counsel. He contends the situation constitutes an exceptional circumstance warranting the rescission of an order of deportation entered in his absence. 8 U.S.C. §§ 1252b(c) (3), 1252b(f) (2). The Board of Immigration Appeals ("BIA") disagreed. However, in Matter of Grijalva-Barrera, Interim Decision 3284 (BIA1996), decided over a year later, the BIA determined that in certain circumstances a claim of ineffective assistance of counsel does justify rescission.

In this case, although petitioner did have notice of the hearing, he was advised by his counsel that his next appearance would be at an administrative interview. Petitioner's counsel should have advised petitioner to attend the hearing or requested a continuance, but she miscalendared the hearing so that it was conducted in petitioner's absence. Counsel's miscalendaring of the hearing may have been a circumstance beyond petitioner's control. 8 U.S.C. § 1252b(f) (2).

In Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996), we held that traffic difficulties that cause an alien to arrive late at a hearing do not constitute exceptional circumstances. Because this situation is substantially different from the one encountered in Sharma, and because where the intent of Congress is not clear, we defer to the interpretation of a statute by the agency charged with enforcing it, Chevron U.S.A., Inc. v. Natural Resources Defense Counsel, 467 U.S. 837, 843 (1984), we remand to the BIA for reconsideration of petitioner's case in light of Grijalva-Barrera.

REMANDED.