Jose Villanueva-Zaldana v. Eric H. Holder Jr. , 424 F. App'x 669 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE A. VILLANUEVA-ZALDANA, No. 08-72840
Petitioner, Agency No. A014-145-167
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2011 **
Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.
Jose A. Villanueva-Zaldana, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) deportation order and denying his motion to
remand based on ineffective assistance of counsel. We have jurisdiction under
*
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).
8 U.S.C. § 1252. We review de novo claims of ineffective assistance of counsel,
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part
and grant in part the petition for review and remand for further proceedings.
The BIA did not err in finding that Villanueva-Zaldana’s former counsel had
not acted ineffectively by failing to submit the plea hearing transcript to the IJ. See
id. at 793 (a petitioner must demonstrate that counsel failed to perform with
sufficient competence to prevail on an ineffective assistance of counsel claim).
Because the BIA failed to address Villanueva-Zaldana’s contentions, raised
in his brief on appeal to the BIA, that the IJ’s bias violated due process and that the
IJ erred in failing to adjudicate his adjustment of status application, we grant the
petition for review and remand to the agency to consider these contentions in the
first instance. See Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009) (BIA is
not free to ignore arguments raised by a petitioner).
Each party shall bear its own costs in this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
2 08-72840