ROMMEL VALBUENA V. ERIC HOLDER, JR., No. 09-72749 (9th Cir. 2014)
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FILED MAY 20 2014 NOT FOR PUBLICATION MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROMMEL ANTHONY VALBUENA; et al., No. 09-72749 Agency Nos. Petitioners, v. A098-263-631 A098-263-719 A098-263-743 A098-263-744 ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM* Respondent. ROMMEL ANTHONY VALBUENA; et al., No. 10-71967 Agency Nos. Petitioners, v. A098-263-631 A098-263-719 A098-263-743 A098-263-744 ERIC H. HOLDER, Jr., Attorney General, Respondent. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. -2On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 16, 2014 San Francisco, California Before: SILVERMAN and GOULD, Circuit Judges, and LEMELLE, District Judge.** Rommel Anthony Valbuena, his wife Maria Teresa Valbuena, and their minor children Erika Nicole Valbuena and Giancarlo Valbuena, bring this consolidated appeal challenging (1) the BIA s July 31, 2009 order affirming the Immigration Judge s denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture, and (2) the BIA s June 11, 2010 denial of their motion to reopen their case. We have jurisdiction pursuant to 8 U.S.C. ยง 1252. We GRANT the petition for review of the BIA s denial of the motion to reopen in case number 10-71967, and we remand for further proceedings. We DISMISS AS MOOT the petition for review in case number 09-72749. This Court reviews the BIA s denial of a motion to reopen for an abuse of discretion, and reviews de novo questions of law, including claims of due process ** The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District Court for the Eastern District of Louisiana, sitting by designation. -3violations due to ineffective assistance. Mohammed v. Gonzales, 400 F.3d 785, 791 92 (9th Cir. 2005); see also Kwong v. Holder, 671 F.3d 872, 880 (9th Cir. 2011). To establish prejudice from ineffective assistance of counsel, the Valbuenas must show that the performance of counsel was so inadequate that it may have affected the outcome of the proceedings. Morales-Apolinar v. Mukasey, 514 F.3d 893, 898 (9th Cir. 2008) (quoting Munoz v. Ashcroft, 339 F.3d 950, 955 (9th Cir.2003)) (emphasis in original). The BIA did not articulate the standard it applied in determining prejudice, but the Valbuenas have plausible grounds for relief. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004). The BIA therefore abused its discretion in denying the motion to reopen. The petition for review in case number 10-71967 is GRANTED and we remand to the BIA with instructions to reopen and remand the case to the IJ for further proceedings consistent with this memorandum. The petition for review in case number 09-72749 is DISMISSED AS MOOT.
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