FILED
NOT FOR PUBLICATION FEB 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ARMEN AMIRKHANYAN, a.k.a. Armen No. 11-71835
Amirkhanian; GAYANE MAGHAKYAN,
Agency Nos. A075-758-453
Petitioners, A097-854-240
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Armen Amirkhanyan and Gayane Maghakyan, natives and citizens of
Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) order
denying their motion to reopen based on ineffective assistance of counsel. We
*
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).
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
denial of a motion to reopen and review de novo claims of due process violations.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We grant the
petition for review and remand for further proceedings.
The BIA abused its discretion in denying petitioners’ motion to reopen based
on the ineffective assistance of the attorney who represented them before the
agency, where petitioners established that their attorney failed to sufficiently
prepare their case, they advised their attorney of available corroborating evidence
but the attorney failed to introduce such evidence, and these failures may have
affected the agency’s adverse credibility finding. See Mohammed, 400 F.3d at
793-94 (prejudice results when counsel’s actions may have affected the outcome of
proceedings). Moreover, the BIA’s failure to mention the highly probative
affidavits of the two witnesses who would have testified in support of petitioners’
claim was an abuse of discretion. See Cole v. Holder, 659 F.3d 762, 771-72 (9th
Cir. 2011).
We therefore grant the petition for review and remand to the BIA for further
proceedings consistent with this disposition.
Because the government concedes that the BIA did not deny petitioners’
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motion as untimely, the issue of equitable tolling is not before us.
PETITION FOR REVIEW GRANTED; REMANDED.
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