Joel Sosa Elizondo 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NOT FOR PUBLICATION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
JOEL SOSA ELIZONDO,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-71474
Agency No. A079-519-306
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2010**
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Joel Sosa Elizondo, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings based on ineffective assistance of counsel. We have
FILED
APR 14 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the
denial of a motion to reopen, and review de novo questions of law, including
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 and remand.
The BIA abused its discretion in basing its prejudice inquiry on a heightened
standard where it concluded that petitioner failed to demonstrate that the result in
the case “would have changed.” See Maravilla Maravilla v. Ashcroft, 381 F.3d
855, 858-59 (9th Cir. 2004) (per curiam) (BIA abused its discretion by analyzing
prejudice under too stringent a standard where “[i]t should have asked only
whether [prior counsel’s] . . . performance may have affected the proceedings”).
We therefore remand for further proceedings. See id.
PETITION FOR REVIEW GRANTED; REMANDED.

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