Fabian Cruz-Hernandez v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FABIAN CRUZ-HERNANDEZ,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-70954
Agency No. A078-679-743
MEMORANDUM *
FABIAN CRUZ-HERNANDEZ,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-75707
Agency No. A078-679-743
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 11, 2010
San Francisco, California
FILED
FEB 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Before: NOONAN, BERZON and IKUTA, Circuit Judges.
The government concedes that the Immigration Judge (IJ) erred under 8
U.S.C. § 1229a(b)(5)(A) in refusing to issue Cruz-Hernandez’s removal order in
absentia, where it is undisputed that Cruz-Hernandez was not in fact present at his
hearing and there is no evidence in the record that he agreed the proceedings be
conducted in his absence, see 8 U.S.C. § 1229a(b)(2)(A). We agree, and therefore
grant Cruz-Hernandez’s petition for review of the Board of Immigration Appeals’
(BIA) denial of Cruz-Hernandez’s motion to reopen. We remand to the BIA with
directions to remand to the IJ for a new removal hearing.
Because the IJ based his determination that Cruz-Hernandez was removable
on the sole ground that the Attorney General had “reason to believe” that Cruz-
Hernandez had been involved in illicit trafficking in a controlled or listed
substance or chemical, pursuant to 8 U.S.C. § 1182(a)(2)(C)(i), Cruz-Hernandez’s
claim that the crime for which he was indicted was not a controlled substance
offense is not germane and we do not reach it here. Nor do we reach Cruz-
Hernandez’s other claims, which are based on errors related to Cruz-Hernandez’s
absence at his prior removal hearing. Cruz-Hernandez’s remaining claims are
therefore dismissed. For the same reasons, we dismiss Cruz-Hernandez’s petition

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for review of the BIA’s denial of his appeal from the IJ’s determination of
removability.
Each party will bear its own costs on appeal.
PETITION FOR REVIEW of Appeal No. 05-75707 GRANTED in part;
DISMISSED in part; REMANDED with instructions that Cruz-Hernandez
receive a rehearing.
PETITION FOR REVIEW of Appeal No. 05-70954 DISMISSED.

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