FILED
NOT FOR PUBLICATION SEP 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HUGO LEONEL CHAVEZ-MEZA, a.k.a. No. 07-72783
Hugo L. Chavez,
Agency No. A090-525-199
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Hugo Leonel Chavez-Meza, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS,
*
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).
321 F.3d 889, 894 (9th Cir. 2003), and review de novo claims of ineffective
assistance of counsel, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We grant the petition for review and remand.
In Chavez-Meza’s motion to reopen, he claimed his counsel in proceedings
rendered ineffective assistance by failing to submit an application for withholding
of removal or relief under the Convention Against Torture (“CAT”). The BIA
erred by basing its prejudice inquiry on a heightened standard where it concluded
that Chavez-Meza failed to establish prima facie eligibility for CAT relief. See
Maravilla v. Ashcroft, 381 F.3d 855, 859 (9th Cir. 2004) (per curiam) (BIA abused
its discretion by applying prima facie eligibility standard to prejudice analysis).
With respect to withholding of removal, the BIA also erred in concluding Chavez-
Meza’s motion did not set forth plausible grounds for relief. See Mohammed, 400
F.3d at 798 (prejudice established where alien raised “plausible” claim for relief).
Accordingly, the BIA abused its discretion in denying Chavez-Meza’s
motion to reopen. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (the
BIA’s denial of a motion to reopen shall be reversed if it is “arbitrary, irrational, or
contrary to law”). We grant the petition for review and remand for further
proceedings consistent with this disposition.
PETITION FOR REVIEW GRANTED; REMANDED.
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