383 F. App'x 614

Agustinus David MONIAGA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-70406.

United States Court of Appeals, Ninth Circuit.

Submitted May 25, 2010.*

Filed June 10, 2010.

Armin Alexander Skalmowski, Law Office of Armin Skalmowski, Alhambra, CA, for Petitioner.

Channah Farber, U.S. Department of Justice, Washington, DC, Ronald E. Le-fevre, Office of the District Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

MEMORANDUM **

Agustinus David Moniaga, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen, and review de novo claims of due process violations in removal proceedings, including claims of 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 by basing its prejudice inquiry on a heightened standard where it concluded that Moniaga failed to establish a prima facie case of eligibility for the relief sought. See Iturribarria v. INS, 321 F.3d 889, 899-90 (9th Cir.2003) (alien must demonstrate that counsel’s performance “was so inadequate that it may have affected the outcome of the proceedings”); Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004) (alien “need not show that they would win *615or lose on any claims”) (internal citation and quotation marks omitted). We therefore remand for the BIA to reconsider its prejudice determination.

PETITION FOR REVIEW GRANTED; REMANDED.

Moniaga v. Holder
383 F. App'x 614

Case Details

Name
Moniaga v. Holder
Decision Date
Jun 10, 2010
Citations

383 F. App'x 614

Jurisdiction
United States

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