Delgadillo De Perez v. Holder , 383 F. App'x 642 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MAYRA DELGADILLO DE PEREZ; Nos. 07-74012
JOSE ALFREDO PEREZ HERNANDEZ, 08-71599
Petitioners, Agency Nos. A097-347-153
A097-347-154
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
In these consolidated petitions for review, Mayra Delgadillo De Perez and
Jose Alfredo Perez Hernandez, natives and citizens of Mexico, petition for review
of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration
*
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).
07-74012/08-71599
judge’s (“IJ”) decision denying their applications for cancellation of removal, and
the BIA’s order denying their motion to reopen proceedings based on ineffective
assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review de
novo due process claims, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th
Cir. 2003), and for abuse of discretion the denial of a motion to reopen, Maravilla
Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir. 2004) (per curiam). We grant
the petition for review in No. 08-71599, and dismiss the petition for review in No.
07-74012.
The BIA abused its discretion in denying petitioners’ motion to reopen
because it applied the wrong standard to determine whether the performance of
prior counsel resulted in prejudice. See id. at 858-59 (BIA abused its discretion
when it determined that counsel’s performance did not result in prejudice by
directly adjudicating whether the petitioners would win or lose their claim). The
BIA required petitioners to demonstrate eligibility for cancellation of removal,
when they need only demonstrate that counsel’s performance “may have affected
the outcome of the proceedings” before the IJ. See id. (quoting Iturribarria v. INS,
321 F.3d 889, 900 (9th Cir. 2004)). We therefore remand for the BIA to
determine, under the correct standard, whether petitioners were prejudiced by prior
counsel’s conduct.
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We need not address the petition for review in No. 07-74012 in light of our
disposition in No. 08-71599.
IN NO. 07-74012: PETITION FOR REVIEW DISMISSED.
IN NO. 08-71599: PETITION FOR REVIEW GRANTED;
REMANDED. Respondent shall bear the costs for this petition for review.
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