Alvarez-Maldonado v. Ashcroft

114 F. App'x 833

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 1, 2004
• Docket: No. 03-71105
• Status: Published

Opinion

MEMORANDUM

*

Petitioner Maricruz AIvarez-Maldonado seeks review of the decision of the Board of Immigration Appeals (“BIA”) declining to reopen her application for cancellation of removal. We grant the petition for review, and remand to the BIA.

We conclude that the deficient performance of Alvarez-Maldonado’s former attorney was prejudicial. Although counsel agreed to “produce and file an appeal brief’ and to “keep Ms. Alvarez informed at all stages of the proceedings,” he failed to fulfill both obligations. These omissions prevented Alvarez-Maldonado from raising Beltram-Tirado v. INS, 213 F.3d 1179 (9th Cir.2000), before the BIA and this court as relevant precedent providing “plausible grounds for relief.” Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1046 (9th Cir.2000) (quoting United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir.1996)) (internal quotation marks omitted). Under these circumstances, the BIA erred in denying Alvarez-Maldonado’s motion to reopen¹ for lack of prejudice. We accordingly remand to the BIA for further consideration.

PETITION GRANTED; REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . We adopt Alvarez-Maldonado’s characterization of the motion because the facts supporting her claim of ineffective assistance of counsel were "unavailable to [her] at an earlier stage of the administrative process.” Iturribarria v. INS, 321 F.3d 889, 891 (9th Cir. 2003).