424 F. App'x 669

Jose A. VILLANUEVA-ZALDANA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-72840.

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 2011.*

Filed March 25, 2011.

Antonio M. Zaldana, Law Office of Antonio M. Zaldana, Santa Fe Springs, CA, for Petitioner.

District Counsel, Esquire, Office of the District Counsel Department of Homeland Security, Los Angeles, CA, Michael Christopher Heyse, OIL, John Hogan, Senior Litigation Counsel, DOJ-U.S. Department of Justice, Washington, DC, Ronald E. Lefevre, Office of the District Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

MEMORANDUM **

Jose A. Villanueva-Zaldana, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from *670an immigration judge’s (“IJ”) deportation order and denying his motion to remand based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review de novo claims of ineffective assistance of counsel, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny in part and grant in part the petition for review and remand for further proceedings.

The BIA did not err in finding that Villanueva-Zaldana’s former counsel had not acted ineffectively by failing to submit the plea hearing transcript to the IJ. See id. at 793 (a petitioner must demonstrate that counsel failed to perform with sufficient competence to prevail on an ineffective assistance of counsel claim).

Because the BIA failed to address Villanueva-Zaldana’s contentions, raised in his brief on appeal to the BIA, that the IJ’s bias violated due process and that the IJ erred in failing to adjudicate his adjustment of status application, we grant the petition for review and remand to the agency to consider these contentions in the first instance. See Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir.2009) (BIA is not free to ignore arguments raised by a petitioner).

Each party shall bear its own costs in this petition for review.

PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.

Villanueva-Zaldana v. Holder
424 F. App'x 669

Case Details

Name
Villanueva-Zaldana v. Holder
Decision Date
Mar 25, 2011
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424 F. App'x 669

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United States

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