Vargas-cano v. Holder , 375 F. App'x 724 ( 2010 )

FILED
NOT FOR PUBLICATION APR 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GUILLERMO VARGAS-CANO; MARIA No. 07-72451
DEL CARMEN VARGAS-CORDERO,
Agency Nos. A095-451-021
Petitioners, A095-451-022
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Guillermo Vargas-Cano and Maria Del Carmen Vargas-Cordero, natives and
citizens of Mexico, petition for review of the Board of Immigration Appeals’
(“BIA”) order denying their motion to reopen based on ineffective assistance of
*
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).
counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
discretion the denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d 785,
791-92 (9th Cir. 2005). We grant the petition for review.
The BIA abused its discretion in denying the motion by using an
inappropriate standard of review. See Maravilla Maravilla v. Ashcroft, 381 F.3d
855, 858 (9th Cir. 2004). Although the BIA appropriately considered whether
ineffective assistance “may have affected the case,” it applied too stringent a
standard when it stated that “we are not compelled to find” that counsel’s
performance was so inadequate as to meet that standard. See id. at 858-59.
Accordingly, we grant the petition for review, and remand for the BIA to
consider whether competent counsel would have acted otherwise, and, if so, to
consider under the correct standard whether petitioners were thereby prejudiced.
PETITION FOR REVIEW GRANTED; REMANDED.
2 07-72451