FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CELIA DIAZ MARTINEZ, No. 17-72186 Petitioner, Agency No. v. A073-948-023 WILLIAM P. BARR, Attorney General, Respondent. CELIA DIAZ MARTINEZ, AKA Celia No. 18-72034 Diaz, AKA Celia Diaz Martinez, Petitioner, Agency No. A073-948-023 v. WILLIAM P. BARR, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 10, 2019 Pasadena, California Filed October 30, 2019 2 DIAZ MARTINEZ V. BARR Before: Richard A. Paez and Richard R. Clifton, Circuit Judges, and Gary S. Katzmann, * Judge. Opinion by Judge Katzmann; Dissent by Judge Clifton SUMMARY ** Immigration Granting Celia Diaz Martinez’s petition for review of an order of the Board of Immigration Appeals and remanding, the panel held that: 1) absent any prejudice to the Government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the BIA; and 2) the BIA abused its discretion in denying Diaz Martinez’s appeal of an immigration judge’s denial of her motion to reopen, where the IJ in the underlying removal proceeding ordered Diaz Martinez removed in absentia on the basis of an amended notice to appear of which she did not receive proper notice. In 2007 Diaz Martinez was served with a notice to appear (“NTA”) charging her as an alien present in the United States who had not been admitted or paroled and alleging that she arrived in the United States at or near San Ysidro, California, on or about August 25, 1989. * The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. DIAZ MARTINEZ V. BARR 3 In June of 2010, Diaz Martinez’s counsel was personally served a notice of her next hearing, and Diaz Martinez submitted a change of address to the immigration court and the Government. That same day, the Government issued an amended NTA, in which it amended its factual allegations to charge that she entered the United States at or near an unknown place on or about an unknown date. A box was checked indicating that the amended allegations were “in lieu of” the allegations in the 2007 NTA. The certificate of service section listed Diaz Martinez’s old address, not the new address she provided, and the boxes for means of service were all left blank. When Diaz Martinez did not appear at her next hearing, the IJ ordered her removed in absentia. In 2017, Diaz Martinez filed a motion to reopen, which the IJ denied, and Diaz Martinez appealed to the BIA. While her appeal was pending with the BIA, she filed a petition for review with this court on August 22, 2017, and the BIA later dismissed her appeal on October 25, 2017. Diaz Martinez also filed a second motion to reopen, this ...
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