Rani v. Holder , 471 F. App'x 777 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAJESH RANI; AJAI PAL SINGH No. 07-72341
KANWAR,
Agency Nos. A046-330-775
Petitioners, A046-866-696
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2012 **
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Rajesh Rani and Ajai Pal Singh Kanwar, natives and citizens of India,
petition for review of the Board of Immigration Appeals’ (“BIA”) order denying
their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review
for abuse of discretion the denial of a motion to reopen, and review de novo claims
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of due process violations due to ineffective assistance of counsel. Mohammed v.
Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We grant the petition for review
and remand for further proceedings.
Contrary to the BIA’s determination, petitioners were prejudiced by their
former counsel’s failure to present an asylum claim based on past harm to
members of Rani’s husband’s family because petitioners had a plausible claim that
this harm was on account of a protected ground. See id. at 794 (prejudice is
established when counsel’s errors “may have affected the outcome of the
proceedings”) (citation omitted). It follows that the BIA abused its discretion in
denying petitioners’ motion to reopen. We therefore grant the petition for review
and remand to the BIA with instructions to reopen and remand the case to the
immigration judge for further proceedings consistent with this disposition.
In light of our disposition, we need not address petitioners’ remaining
contentions.
PETITION FOR REVIEW GRANTED; REMANDED.
2 07-72341