Jose Villanueva-Zaldana v. Eric H. Holder Jr., No. 08-72840 (9th Cir. 2011)

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FILED MAR 25 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JOSE A. VILLANUEVA-ZALDANA, Petitioner, No. 08-72840 Agency No. A014-145-167 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 8, 2011 ** Before: FARRIS, O SCANNLAIN, and BYBEE, Circuit Judges. Jose A. Villanueva-Zaldana, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals ( BIA ) order dismissing his appeal from an immigration judge s ( IJ ) deportation order and denying his motion to remand based on ineffective assistance of counsel. We have jurisdiction under * 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). 8 U.S.C. § 1252. We review de novo claims of ineffective assistance of counsel, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and grant in part the petition for review and remand for further proceedings. The BIA did not err in finding that Villanueva-Zaldana s former counsel had not acted ineffectively by failing to submit the plea hearing transcript to the IJ. See id. at 793 (a petitioner must demonstrate that counsel failed to perform with sufficient competence to prevail on an ineffective assistance of counsel claim). Because the BIA failed to address Villanueva-Zaldana s contentions, raised in his brief on appeal to the BIA, that the IJ s bias violated due process and that the IJ erred in failing to adjudicate his adjustment of status application, we grant the petition for review and remand to the agency to consider these contentions in the first instance. See Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009) (BIA is not free to ignore arguments raised by a petitioner). Each party shall bear its own costs in this petition for review. PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED. 2 08-72840

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