Guillermo Vargas-Cano; Maria Del Carmen Vargas-Cordero 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NOT FOR PUBLICATION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
GUILLERMO VARGAS-CANO; MARIA
DEL CARMEN VARGAS-CORDERO,
Petitioners,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-72451
Agency Nos. A095-451-021
A095-451-022
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.
Guillermo Vargas-Cano and Maria Del Carmen Vargas-Cordero, natives and
citizens of Mexico, petition for review of the Board of Immigration Appeals’
(“BIA”) order denying their motion to reopen based on ineffective assistance of
FILED
APR 13 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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07-72451 2
counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
discretion the denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d 785,
791-92 (9th Cir. 2005). We grant the petition for review.
The BIA abused its discretion in denying the motion by using an
inappropriate standard of review. See Maravilla Maravilla v. Ashcroft, 381 F.3d
855, 858 (9th Cir. 2004). Although the BIA appropriately considered whether
ineffective assistance “may have affected the case,” it applied too stringent a
standard when it stated that “we are not compelled to find” that counsel’s
performance was so inadequate as to meet that standard. See id. at 858-59.
Accordingly, we grant the petition for review, and remand for the BIA to
consider whether competent counsel would have acted otherwise, and, if so, to
consider under the correct standard whether petitioners were thereby prejudiced.
PETITION FOR REVIEW GRANTED; REMANDED.

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