Dulyan v. Gonzales

MEMORANDUM ** *729 Gurgen Dulyan, a native and citizen of Armenia, seeks review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252 . Reviewing for abuse of discretion, Reyes v. Ashcroft, 358 F.3d 592, 595 (9th Cir.2004), we grant the petition for review and remand for further proceedings. Although Dulyan’s motion to reopen did not comply with Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), the ineffective assistance of counsel is clear from the record because Dulyan’s attorney indicated in the notice of appeal that a separate brief would be filed and failed to file the brief. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002) (holding that Lozada requirements need not be rigidly enforced where ineffective assistance of counsel is apparent from the record). As a matter of law, the attorney’s failure to file a brief resulted in prejudice to Dulyan. PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.