FILED
NOT FOR PUBLICATION MAR 24 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDWIN GEOVANI ARGUETA- No. 07-72499
JORDAN,
Agency No. A078-536-414
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Edwin Geovani Argueta-Jordan, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to reopen removal proceedings due to ineffective assistance of counsel.
*
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).
LA/Research
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of
discretion the denial of a motion to reopen, and de novo claims of due process
violations, including claims of ineffective assistance of counsel in immigration
proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We
grant the petition for review and remand.
The BIA’s conclusion that Argueta-Jordan’s counsel’s representation before
the immigration judge was sufficient is not supported by the record. See
Mohammed, 400 F.3d at 793 (alien must demonstrate constitutionally deficient
counsel and prejudice to prevail on an ineffective assistance of counsel claim).
The immigration judge (“IJ”) noted several ways in which counsel’s performance
was “shameful” and “absurd.” Of particular concern, counsel failed to submit an
application for adjustment of status, although petitioner’s wife was a United States
citizen, petitioner has an approved I-130 visa, and the IJ appears to have taken
petitioner’s testimony that he entered the United States legally in 1992 as credible.
This failure to present the adjustment claim to the IJ may have affected the
outcome of his removal proceeding. See Ray v. Gonzales, 439 F.3d 582, 587 (9th
Cir. 2006). We therefore grant the petition for review, and remand to the BIA.
The parties shall bear their own costs for this appeal.
PETITION FOR REVIEW GRANTED; REMANDED.
LA/Research 2 07-72499