Sosa Elizondo v. Holder

FILED
NOT FOR PUBLICATION APR 14 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JOEL SOSA ELIZONDO, No. 07-71474

Petitioner, Agency No. A079-519-306

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.

Joel Sosa Elizondo, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

removal proceedings based on ineffective assistance of counsel. We have

*
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).
jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the

denial of a motion to reopen, and review de novo questions of law, including

claims 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.

The BIA abused its discretion in basing its prejudice inquiry on a heightened

standard where it concluded that petitioner failed to demonstrate that the result in

the case “would have changed.” See Maravilla Maravilla v. Ashcroft, 381 F.3d

855, 858-59 (9th Cir. 2004) (per curiam) (BIA abused its discretion by analyzing

prejudice under too stringent a standard where “[i]t should have asked only

whether [prior counsel’s] . . . performance may have affected the proceedings”).

We therefore remand for further proceedings. See id.

PETITION FOR REVIEW GRANTED; REMANDED.

2 07-71474