                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                            APR 14 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

KIRANPAL SINGH,                                   No. 07-71167

               Petitioner,                        Agency No. A079-572-573

  v.
                                                  MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

               Respondent.



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

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Kiranpal Singh, a native and citizen of India, 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



          *
             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).
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 establish that the outcome of

his case would have been different.” See Maravilla Maravilla v. Ashcroft, 381

F.3d 855, 859 (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 the BIA to reconsider prejudice and whether petitioner

established grounds for equitably tolling the regulatory filing deadline.

      PETITION FOR REVIEW GRANTED; REMANDED.




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