Lot Aner Fonseca-molina, Petitioner, v. Immigration and Naturalization Service, Respondent, 91 F.3d 151 (9th Cir. 1996)

MEMORANDUM^** 

Lot Aner Fonseca-Molina, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals ("BIA") denying his motion to reopen in absentia deportation proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a), and we grant the petition.

Fonseca-Molina contends that the BIA abused its discretion by denying his motion to reopen because he established "reasonable cause" for his failure to appear at his deportation hearing. This contention has merit.

We review the denial of a motion to reopen for abuse of discretion. Hernandez-Vivas v. INS, 23 F.3d 1557, 1560 (9th Cir. 1994).

Section 242(b) of the Immigration and Nationality Act ("INA") provides that if a petitioner "has been given a reasonable opportunity to be present" at his deportation hearing and "without reasonable cause fails ... to attend," the Immigration Judge may proceed in absentia. See 8 U.S.C. § 1252(b). In order to reopen the deportation proceeding, the petitioner must establish "reasonable cause" for his absence. See Hernandez-Vivas, 23 F.3d at 1559.

Here, Fonseca-Molina submitted an affidavit stating that he was unable to appear at his deportation hearing because his automobile had engine trouble and he was stranded on the freeway. Because Fonseca-Molina established "reasonable cause" for his absence, we conclude that the BIA abused its discretion in denying his motion to reopen. See id. at 1562. The sole relief sought on remand is voluntary departure pursuant to section 244(e) of the INA, 8 U.S.C. § 1254(e). We remand to the BIA with instructions to consider Fonseca-Molina's application for voluntary departure.

PETITION FOR REVIEW GRANTED.