NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 25 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
HABTU HAGOS HABTEMICAEL, No. 07-73143
Petitioner, Agency No. 28 204 406
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 12, 2010
Seattle, Washington
Before: RYMER and N. R. SMITH, Circuit Judges, and WALTER, District
Judge.**
Habtu Hagos Habtemicael (“Habtemicael”), a native and citizen of Eritrea,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
his motion to reopen based on (1) ineffective assistance of counsel and (2) changed
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Donald E. Walter, Senior United States District Judge
for Western Louisiana, sitting by designation.
country conditions warranting asylum. We have jurisdiction under 8 U.S.C.
§ 1252. We grant the petition to reopen and remand for further proceedings
consistent with this decision.
1. The BIA abused its discretion in holding that Habtemicael’s ineffective
assistance of counsel claim demonstrated neither (A) due diligence nor (B)
prejudice.
A. Due Diligence
Habtemicael’s first two attorneys assumed (without doing any research) that
Habtemicael’s assault conviction was a crime involving moral turpitude (CIMT).
Habtemicael did not learn that his conviction may not be a CIMT until he retained
new counsel. Within 90 days after learning of the alleged ineffectiveness,
Habtemicael filed a motion to reopen. Where, as here, Habtemicael was
represented by counsel during the entire proceedings, he could not have discovered
the ineffectiveness of prior counsel until he spoke with new counsel. See
Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007). Therefore, based
upon the record before us, the BIA abused its discretion in finding that
Habtemicael failed to act with due diligence in discovering the ineffective
assistance of counsel claim. See Iturribarria v. INS, 321 F.3d 889, 897-98 (9th
Cir. 2003).
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B. Prejudice
After demonstrating due diligence, Habtemicael must show that he was
prejudiced by the performance of his two counsel. See Mohammed v. Gonzales,
400 F.3d 785, 793 (9th Cir. 2005). A showing of prejudice can be made if
counsel’s performance “was so inadequate that it may have affected the outcome of
the proceedings.” Iturribarria, 321 F.3d at 899-900 (internal quotation marks and
citation omitted). Here, upon reviewing the judicially noticeable documents,1 one
cannot determine that Habtemicael’s conviction for Assault in the Second Degree,
RCW § 9A.36.021(1)(e) (which requires an assault on another with the intent to
commit a felony), was a CIMT. The record does not evidence which felony
Habtemicael intended to commit. We can glean that the underlying felony may
have involved sexual assault on a minor female. However, even if we were to
assume that the underlying felony was the originating charge of Rape of Child in
the Third Degree, RCW § 9A.44.079, that statute, without more, does not
unequivocally prove a CIMT. See Quintero-Salazar v. Keisler, 506 F.3d 688,
693-94 (9th Cir. 2007) (holding that a violation of California Penal Code
§ 261.5(d), a similar statute to RCW § 9A.44.079, was not necessarily a CIMT).
1
We note that the Certificate for Determination of Probable Cause is not a
judicially noticeable document under these circumstances. See Parrilla v.
Gonzales, 414 F.3d 1038, 1040 & 1044 (9th Cir. 2005).
3
Because the record before us does not unequivocally show that Habtemicael was
convicted of a CIMT, counsels’ failure to raise this issue may have affected the
outcome of the proceedings. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.
2004) (“To prove he was prejudiced by counsel’s alleged ineffectiveness,
[petitioner] only needs to show that he has plausible grounds for relief.” (internal
quotation marks and citation omitted)). Thus, the BIA abused its discretion in
finding that Habtemicael failed to demonstrate prejudice.
2. The BIA abused its discretion when it failed to consider Habtemicael’s
allegations of changed country conditions in connection with his proposed asylum
application. This failure to even consider the allegation was error. We do not
require “the BIA . . . to write an exegesis on every contention.” Lopez v. Ashcroft,
366 F.3d 799, 807 n.6 (9th Cir. 2004) (alterations, internal quotation marks and
citation omitted). However, we do require the BIA to “consider the issues raised,
and announce its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted.” Id. (internal
quotation marks and citation omitted). Because we are unable to conduct a
meaningful review of the BIA’s decision, as to this issue, we remand with
instructions for the BIA to address the issue in the first instance.
4
Accordingly, we grant the petition and remand on an open record for any
further determinations that the BIA deems necessary. See INS v. Ventura, 537 U.S.
12, 16-17 (2002).
PETITION FOR REVIEW GRANTED; REMANDED.
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