                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 25 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



RAJA AFTAB AKBAR,                                No. 11-73565

               Petitioner,                       Agency No. A075-306-278

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

               Respondent.



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

                             Submitted March 12, 2013 **

Before:        PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

       Raja Aftab Akbar, a native and citizen of Pakistan, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

and to reissue its previous decision based on ineffective assistance of counsel. We

have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the


          *
             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).
denial of a motion to reopen, and review de novo questions of law. Mohammed v.

Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We grant the petition for review

and remand to the BIA.

      The BIA abused it discretion in denying Akbar’s motion to reopen and

reissue. The BIA erred in finding that Akbar is barred from discretionary relief

under 8 U.S.C. § 1229c(d)(1)(B). Because Akbar was unaware that his counsel

failed to preserve the voluntary departure period despite securing a stay of removal

while his prior petition for review was pending before this court, he did not

voluntarily fail to depart during his voluntary departure period. See Matter of

Zmijewska, 24 I. & N. Dec. 87 (BIA 2007). Akbar was therefore prejudiced by his

attorney’s failure to preserve his grant of voluntary departure. See Mohammed,

400 F.3d at 793-794 (prejudice is established when counsel’s errors “may have

affected the outcome of the proceedings”).

      We remand to the BIA for further proceedings consistent with this

disposition.

      PETITION FOR REVIEW GRANTED; REMANDED.




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