                        NOT FOR PUBLICATION                        FILED
                 UNITED STATES COURT OF APPEALS                     JUL 16 2020
                                                                MOLLY C. DWYER, CLERK
                                                                 U.S. COURT OF APPEALS
                        FOR THE NINTH CIRCUIT

ROBERTO MEDINA-LAGUNA,                          No.   19-72095

                Petitioner,                     Agency No. A205-713-221

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

                  On Petition for Review of an Order of the
                      Board of Immigration Appeals

                          Submitted July 14, 2020**

Before:      CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

      Roberto Medina-Laguna, a native and citizen of Mexico, 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 de novo questions of law. Flores v. Barr, 930 F.3d 1082,

1087 (9th Cir. 2019). We grant in part and deny in part the petition for


      *
            This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
review.

      The BIA used an incorrect standard when it required Medina-Laguna

to show prima facie eligibility for relief at the time of his proceedings, rather

than the proper standard of showing plausible grounds for relief at the time of

his proceedings. See id. at 1087 (to establish prejudice from ineffective

assistance of counsel, a petitioner need not show prima facie eligibility, but

only that counsel’s deficient performance may have affected the outcome by

showing plausible grounds for relief).

      The BIA also concluded that Medina-Laguna’s failure to strictly

comply with the threshold requirements of Matter of Lozada, 19 I. & N. Dec.

637 (BIA 1988), should not be excused. It is not clear, however, whether

BIA incorrectly relied on the same prejudice determination to assess whether

it was plain on the face of the record that counsels’ actions were ineffective.

See Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th Cir. 2003) (looking at

whether the relevant facts of the alleged ineffective assistance are plain on

the face of the administrative record, separately from assessing prejudice

from counsel’s actions).

      Accordingly, we remand for the BIA to re-evaluate Medina-Laguna’s

prejudice under the correct standard, and to clarify the basis of its

determination that ineffective assistance was not plain on the face of the



                                           2                               19-72095
record. See Recinos De Leon v. Gonzales, 400 F.3d 1185, 1189 (9th Cir.

2005) (remanding for clarification because the court will not “guess at the

theory underlying” the agency’s decision).

      We do not address Medina-Laguna’s contentions regarding due

diligence, where the BIA did not rely on that ground. See Najmabadi v.

Holder, 597 F.3d 983, 986 (9th Cir. 2010) (the court’s review is limited to the

actual grounds relied upon by the BIA). Thus, the BIA’s error in stating the

motion was filed three, rather than two, years after his appeal was dismissed

is harmless.

      Medina-Laguna’s contention that the BIA engaged in impermissible

factfinding is not supported.

      The government shall bear the costs for this petition for review.

      PETITION FOR REVIEW GRANTED in part; DENIED in part;

REMANDED.




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