(dissenting).
“[T]he BIA must indicate with specificity that it heard and considered petitioner’s claims” in the ineffective assistance context. Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004) (internal quotations omitted) (quoting Arrozal v. INS, 159 F.3d 429, 433 (9th Cir.1998)). The denial of a motion to reopen should be remanded if the BIA has not considered the relevant factors and articulated the corresponding reasoning. See, e.g., Virk v. INS, 295 F.3d 1055, 1060 (9th Cir.2002) (remanding where BIA did not consider factors in petitioner’s favor, and where it considered an irrelevant factor); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002) (rejecting the BIA’s “cursory recitation and generalized analysis of the equities in favor of petitioners’ claim”).
The BIA did not discuss the conflict between Avila-Carrasco’s version of his representation — in particular, the evidence-gathering process — and the recollection of his former counsel. It merely recited that Avila’s former counsel was not responsible for the deficiencies, apparently relying on her self-serving “detailed affidavit” saying as much, and failed to mention that a contrary detailed declaration was submitted by Avila. Much less did the BIA’s decision evaluate the content of Avila’s declaration, compare its content to Dixon’s, or make a credibility finding with regard to it.
Moreover, the BIA misapplied the general rule that for a motion to reopen to succeed, the new evidence presented must have been unavailable at the time of the original hearing. 8 C.F.R. § 1003.2(c). The BIA’s application of this rule in an ineffective assistance of counsel claim is a category mistake because the proffered evidence described counsel’s performance, not the evidence that counsel failed to present. This very confusion was rejected by this court in Maravilla. 381 F.3d at 858. It is impossible to discern the extent of the contamination worked by this legal error.
The BIA’s disposition of Avila’s ineffective assistance claim exhibits the precise features this court deemed unacceptable in Virk: “In addition to failing to consider the relevant positive factors, the BIA improperly considered a plainly irrelevant factor.” 295 F.3d at 1060. The record shows that Avila’s lawyer did little of substance to earn the $3000 she apparently collected from him, and that Avila’s case was promising on the underlying merits. Under these circumstances, a remand to the BIA for a proper consideration of all the factors relevant to Avila’s ineffective assistance of counsel claim is appropriate.