Rommel Valbuena v. Eric Holder, Jr.

Ninth Circuit

Rommel Valbuena v. Eric Holder, Jr.

573 F. App'x 656

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 20, 2014

Docket09-72749, 10-71967

StatusUnpublished

This text of 573 F. App'x 656 (Rommel Valbuena v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rommel Valbuena v. Eric Holder, Jr., 573 F. App'x 656 (9th Cir. 2014).

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Opinion

MEMORANDUM **

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. § 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 violations 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.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM **

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. § 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 violations 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.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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