United States Court of Appeals Fifth Circuit 

## FILED April 16, 2007 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________ No. 04-60729

____________ EDGARD ARNOLDO GALVEZ-VERGARA,
Petitioner,
versus ALBERTO R GONZALES, U S ATTORNEY GENERAL, Respondent.

Petition for Review of a Final Order of Removal Entered by the

Board of Immigration Appeals
Before GARZA, PRADO, and OWEN, Circuit Judges. EMILIO M. GARZA, Circuit Judge: Edgard Arnoldo Galvez-Vergara peti tions fo r review of an order of the Board of Im migration Appeals (“BIA”) denying his mo tion to reopen his removal proceedings aft er he was ordered removed in absentia
. I Galvez was admit ted to the Unit ed States at Miami, Flo rida. In 1990, he was convicted in Provo, Utah of the of

fense of forcible sexual abuse, in violation of Utah Code § 76-5-404. He1 It is unclear from the record whether Lish was info rm ed th at the IJ denied the mo tions prior to the master calendar hearing.

2 The Government does not dispute that these submissions conformed with In re Lozada , 19 I. & N. Dec. 637, 639 (BIA 1998) (requiring an alien br inging a claim of in effective assistance of counsel at a removal hearing to present: 1) an affidavit from the alien detailing relationship with counsel; 2) evidence that former counsel had been informed of claim; and 3) evidence as to wh ether a complaint had been filed with appropriate disciplinary authorities). 2 subsequently applied fo r and was granted an adjustment of status to lawful permanent resident. Aft er the Bureau of Immigration and Customs Enforcement discovered his prior conviction, Galvez was charged wit h removability. A mast er calendar hearing was scheduled for September 29, 2003. Notice of the hearing was mailed to and received by Galvez personally. The notice contained a warning that if Galvez did not appear, he could be found removable in absentia
. Galvez hired attorney John Lish to represent him. On September 18, 2003, Lish moved for
a change of venue from Dallas, Texas, to Provo, Utah, where Galvez resided. Lish also moved to appear telephonically at a master calendar hearing scheduled fo r Septem ber 29, 2003. According to Galvez, Lish assured him th at his motion for a change of venue would be granted and that his presence in Dalla s would not be requi red. On September 26, 2003, the immigration judge (“IJ”) denied both of Galvez’s mo tions. Neither Lish nor Galvez appeared at the master calendar hearing, and the IJ found Galvez removable in absentia. 1 Galvez prom

ptl y obtained new counsel and timely mo ved to reopen his removal proceedings on the ground that he received ineffective assistance of counsel. Galvez submitted an affidavit and let ters to Lish and the Utah State Bar explaining his allegations of ineffect ive assistance of counsel. 2 Galvez also sought a stay of removal pursuant to 8 U.S.C. § 1229a(b)(5)(C) (providing th at the filing of a mo tion to rescind a removal order issued in absentia “shall stay the removal of the alien pending disposition of the mo tion by the immigrat io n judge”). Two day s later, the IJ denied the motion to3

stay on the ground that the motion to reopen was not meritorious. The IJ did not deny the motion to reopen, however, until two weeks lat er, when he issued a written decision, reasoning th at Galvez received notice of the hearing and could not demonstrate the “exceptional circumstance” required by 8 U.S.C. § 1229a(b)(5)(C)(i) to rescind an order of removal entered in absentia
. The IJ also held th at Galvez could not demonstrate ineffect ive assistance of counsel because it was not reasonable fo r him to rely on his attorney ’s assurance th at his mo tion fo r a change of venue would be granted and th at his appearance would not be required. The IJ reasoned that Galvez should have followed the instruction in the notice to appear over the instruction of his attorney. Galvez filed an administrative appeal wit h the BIA in which he argued th at Lish’s erroneous advice constituted an “exceptional circumstance” justifying rescinding the removal order. The BIA affirmed wit hout opinio n. II Where, as here, the BIA affirms the IJ wit hout decision, the f ocus of our review is the underlying decision of the IJ. Garcia-Melendez v. Ashcroft , 351 F.3d 657, 660 (5th Cir. 2003). We review the denial of a mo tion to reopen fo r an abuse of discretion. W illiams-Igw

onobe v. Gonzales , 437 F.3d 453, 455 (5th Cir. 2006). Neither the BIA nor the IJ abuses its discretion “so long as it is not capricious, racially invidio us, utterl y wit hout fo undation in the evidence, or otherwise so aberrational th at it is arbitrary rather th an the result of any percepti ble rational app roach.” Osuchukwu v. INS , 744 F.2d 1136, 1142 (5th Cir. 1984). “‘The BIA acts arbit rari ly when it disregards it s own precedents and pol icies wit hout giving a reasonable explanation fo r doing so.’” Diaz-Resendez v. INS , 960 F.2d 493, 497 (5th Cir. 1992) (quoting Israel v. INS , 785 F.2d 738, 740 (9th Cir. 1986)).3 The statutory provision at issue in I n re Grijalva-Barrera was fo rm er INA § 242B(c)(3)(A), 8 U.S.C. § 1252b(c)(3)(A), which has since been repealed. “Congress replaced th[is] provision wit h one th at is in all respects identical except th at what fo rm erly was called ‘deportation’ is now referred to as ‘removal.’ ” Jobe v. INS , 238 F.3d 96, 99 n.4 (1st Cir. 2001) (en banc); see also Socop-Gonzalez v. INS , 272 F.3d 1176, 1187 n.9 (9th Cir. 2001) (noting that these two provisions are functionally identical). 4 Section 1229a(b)(5)(C) of Ti tle 8 of the Unit ed States Code provides th at an in absentia removal order may be rescinded only: (i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(1) of this section)
. The phrase “exceptional circumstances” is defined by statute as follows:

. . . [E]xceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien. 8 U.S.C. § 1229a(e)(1). This case presents the question of whether the advice of an attorney not to appear at an immigrat io n proceeding consti tutes an exceptional circumstance beyond an alien’s control
. The B IA’s precedent establishes that counsel’s erroneous instruction not to appear at an immigrat io n hearing can consti tute an “exceptional circumstance.” In a highly similar case, I n re Grijalva-Barrera , 21 I. & N. Dec. 472 (BIA 1996), the alien was ordered deported in absentia aft er “an employee of his prior attorney called to info rm him t hat there had been a continuance and th at he should not appear at the Im migration Court.” I

d. at 473. The BIA reasoned that the alien had no
reason not to rely on the representations of his lawyer’s employees and remanded the case to the IJ fo r reopening. Id
. 3 Under nearly identical circumstances in L o v. Ashcroft , 341 F.3d 934 (9th Cir. 2003), the4 That reasonable reliance on counsel’s erroneous advice can constitute “exceptional circumstances” requiring

rescission of an or der of removal is a reasonable reading of the statute. When an alien exercises his statutory right to retain counsel in a deportation proceeding, it is reasonable for him to grant effective control of the case to his attorney . Monjaraz-Munoz v. INS , 327 F.3d 892, 896 (9th Cir. 2003). Un der similar circumstances in M onjaraz-Munoz , the Ninth Circuit stated: The role of an attorney . . . is especially important. For the alien unfamiliar with the laws of our country , an attorney serves a special role in helping the alien th ro ugh a complex and completely for eign process. It is therefore reasonable for an alien to trust and rely upon an attorney ’s advice to such an extent that if an alien fails to show up to a hearing because of an attorney, we can say that this is an exceptional circumstance “beyond the control of the alien.” Id at 897; see also Iturribarria v. INS , 321 F.3d 889, 901 (9th Cir. 2003) (“One reason that aliens . . . retain legal assistance in the first place is because they assume that an attorney will know how to comply with the procedural details that make immigration proceedings so complicated.”).

5 Billeke-Tolosa v. Ashcroft , 385 F.3d 708, 712 (6th Cir. 2004) (BIA abuses its discretion when it ignores it s own precedent); Hernandez v. Ashcroft , 345 F.3d 824, 846 (9th Cir. 2003) (same); Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002) (“Although an agency can change or adapt 5 Nint h Circuit held th at the denial of a mo tion to reopen was an abuse of discretion. Lo received written notice th at his appearance at an immigrat io n hearing was required. Id. at 935. The day before the hearing, he contacted his attorney ’s of fice to info rm him th at his wife was suffering severe back pain and th at it was unlikely he could attend the hearing. I d. at 935-36. His attorney was not in his of fice, however, and Lo inst ead spoke wit h his attorney’s secretary. Id . at 936. The secretary told Lo “t hat he ‘had nothing to worry about since the hearing was not until [the fo llo wing] Monday.’ ” Id. Acting on that advice, Lo did not attend the hearing and was ordered deported i n absentia
. I d. The Nint h Circuit concluded th at the subsequent denial of Lo’s mo tion to reopen was an abuse of discretion. Id . at 939. 4 Alt hough Galvez cit ed both Lo and Grijalva-Barrerra in his mo tion to reopen, neit her the IJ
nor the BIA addressed whether the reasoning of those cases applied here. This is especially troubling given th at the BIA’s regulations require it to fo llo w it s own precedent unless overruled. 8 C.F.R. § 1003.1(g). 5 The BIA’s decision to “disregard [ G rijalva-Barrerra ] wit hout giving a reaso nableit s pol

icies, it acts arb it rarily if it departs from its established precedents without ‘announcing a principled reason’ fo r the departure.”); Henry v. INS , 74 F.3d 1, 6 (1st Cir. 1996) (“[A]dministrative agencies m

ust apply the same basic rules to all similarly situated supplicants. An agency canno t merely flit serendipitously from case to case, like a bee buzzing from flo wer to flo wer, making up the rules as it goes along.”) ; Salameda v. INS , 70 F.3d 447, 450 (7th Cir. 1995) (“An agency may no t abandon an interpretation without an explanation . . . . Agencies do not have the same freedom as courts to change direction wit hout acknowledging and justifying the change.”); Davila-Bardales v. INS , 27 F.3d 1, 5 (1st Cir. 1994) (requiring BIA to “confront the issue squarely and explain why the departure i s reasonable” when it departs from its own precedents).

6 We decline the Government’s invitation to affirm the IJ’s decision on the grounds that Galvez has not shown that he was prejudiced by his counsel’s performance. First, I n re Grijalva-Barrera , 21 I. & N. Dec. at 473 n.2, provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to constitute an “exceptional circumstance” justifying rescission of an in absentia removal order. Second, we may not affirm an agency decision on reasons other than those it provided. Dong Sik Kw on v. INS , 646 F.2d 909, 916 (5th Cir. 1981) (en banc) (court may not affirm BIA’s decision on reasoning other than that adopted by the BIA).

7 Galvez also challenges the IJ’s decision to deny his mo tion to stay deportation. The filing of a mo tion to reop en after an i n absentia removal order has been entered automatically stay s removal pending the IJ’s decision on the mo tion. 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(1)(v); In re M-S- , 22 I. & N. Dec. 349, 354 (BIA 1998) (stating th at mo tion to reopen to rescind in absentia removal order “is the only mo tion to reopen fo r which an automatic stay of deportation ensues”). Because the motion to reopen has already been ruled on, it is not pending before the IJ, and Galvez is no lo nger entitled to a stay pursuant to 8 U.S.C. § 1229a(b)(5)(C) (providing th at removal is stayed “pending disposition of the motion by t he immigration judge”). Accordingly, Galvez’s request for a stay pursuant to 8 U.S.C. § 1229a(b)(5)(C) is moot. In any event, because the stay is automatic upon the filing of a mo tion to reopen a removal order entered in absentia , no action by the I J is necessary for it to take effect. See 8 C.F.R. § 1003.23(b)(1)(v) (“Except in cases involving in absentia orders , the filing of a mo tion to reopen . . . shall not stay the execution of any decision made in the case.”) (emphasis added). 6 explanation fo r doing so,” is arbitrary and thus an abuse of discretion. See Diaz-Resendez , 960 F.2d at 497. 6 Accordingly, we grant the petition for review. 7 III For the reasons s tated, we GRANT the peti tion for review and REMAND for additional consideration consistent with this opinion.