Francisco Nunez-Alvarez v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO NUNEZ-ALVAREZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-73396
Agency No. A074-787-557
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010**
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Francisco Nunez-Alvarez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen based on ineffective assistance of counsel. We have jurisdiction under
8 U.S.C. § 1252. See Fernandez v. Gonzales, 439 F.3d 592, 602 (9th Cir. 2006)
FILED
JUN 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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(court has jurisdiction to consider hardship evaluations in the context of the
agency’s prejudice determinations). We review for abuse of discretion the denial
of a motion to reopen, and review de novo claims of due process violations due to
ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92
(9th Cir. 2005). We grant the petition for review.
The BIA concluded that Nunez-Alvarez failed to demonstrate that his former
counsel’s withdrawal of his application for special rule cancellation of removal
pursuant to 8 U.S.C. § 1229b(b)(2) prejudiced Nunez-Alvarez’s claim for this form
of relief, because Nunez-Alvarez did not demonstrate that his removal would result
in extreme hardship to himself or his qualifying relatives. However, the BIA
addressed only the evidence included with the motion, and it did not consider this
evidence in aggregate with the evidence of hardship presented before the IJ. See
Franco-Rosendo v. Gonzales, 454 F.3d 965, 966 (9th Cir. 2006) (the BIA abuses
its discretion when it fails to “consider and address in its entirety the evidence
submitted by a petitioner”) (internal quotation marks and citation omitted); Matter
of Ige, 20 I. & N. Dec. 880, 882 (BIA 1994) (relevant hardship factors “must be
considered in the aggregate in determining whether extreme hardship exists”). The
BIA therefore abused its discretion in denying Nunez-Alvarez’s motion to reopen.

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08-73396 3
See Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000) (agency abuses its discretion
when it acts “arbitrarily, irrationally, or contrary to law”).
We remand for the BIA to determine, in light of the entire record, whether
Nunez-Alvarez’s former counsel’s actions “may have affected the outcome of the
proceeding.” Mohammed, 400 F.3d at 794 (internal quotation omitted).
PETITION FOR REVIEW GRANTED; REMANDED.

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