                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 17 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



MARVIN ALEÈANDER FRANCO,                         No. 09-71272

              Petitioner,                        Agency No. A041-132-618

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

              Respondent.



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

                     Argued and Submitted December 7, 2010
                              Pasadena, California

Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.

       Marvin Alexander Franco (Franco) petitions for review of a decision of the

Board of Immigration Appeals (BIA) dismissing his appeal from the Immigration

Judge's (IJ) denial of Franco's application for relief under the United Nations

Convention Against Torture (CAT). We grant the petition and remand to the BIA.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Franco appeals only the BIA's denial of his ineffective assistance of counsel

claim. The BIA abused its discretion in denying his claim.

      1.     The BIA incorrectly held that Matter of Lozada, 19 I&N Dec. 637

(BIA 1988) barred Franco's claim, despite an obvious and facial ineffectiveness by

Franco's former counsel that cannot be explained as any possible tactical

consideration. Franco's allegation that his former counsel failed to include the

entire Harvard report is 'plain on the face of the administrative record.' See

Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir. 2000). Moreover, the

portion of the report not included by Franco's former counsel directly addressed

the basis for Franco's CAT claim. See Castillo-Perez v. INS, 212 F.3d 518, 525

(9th Cir. 2000) (holding that the Lozada requirements 'need not be rigidly

enforced' when 'an adequate factual basis exists in the record for an

ineffectiveness complaint . . . and the complaint is a legitimate and substantial

one'). The BIA abused its discretion in determining that Franco had not met the

standard for noncompliance with Matter of Lozada.

      2.     The BIA also applied the now-overruled Compean I standard in

determining whether Franco's former counsel failed to perform with sufficient

competence. See Matter of Compean, Bangaly & J-E-C- (Compean II), 25 I&N

Dec. 1, 3 (A.G.2009) (vacating Matter of Compean, Bangaly & J-E-C- (Compean


                                           2
I), 24 I&N Dec. 710 (A.G. 2009) and directing the BIA to apply pre-Compean

standards). Contrary to the government's assertion, the BIA clearly relied on

Compean's egregious conduct standard. On remand, the BIA must consider

whether Franco's former counsel failed to 'perform with sufficient competence,'

Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004), and whether 'competent

counsel would have acted otherwise,' Maravilla Maravilla v. Ashcroft, 381 F.3d

855, 858 (9th Cir. 2004), by including the entire report in the record.

      3.     Finally, the BIA applied the wrong legal standard to its prejudice

analysis. The BIA assessed prejudice under a standard requiring Franco to show

that he would have won his CAT claim had the entire report been submitted. This

approach is contrary to established case law in this circuit. See Ray v. Gonzales,

439 F.3d 582, 587 (9th Cir. 2006) (holding that 'prejudice is found when the

performance of counsel was so inadequate that it may have affected the outcome of

the proceedings'); Maravilla, 381 F.3d at 858 (holding that petitioner 'need not

show that [he] would win or lose on any claims.'). On remand, the BIA must

determine whether submission of the entire Harvard report may have affected the

outcome of proceedings.

      GRANTED AND REMANDED.




                                           3
                                                                             FILED
Franco v. Holder, No. 09-71272                                                FEB 17 2011

                                                                          MOLLY C. DWYER, CLERK
CALLAHAN, CIRCUIT JUDGE, concurring in part and dissenting in part:CO U RT OF AP PE A LS
                                                               U.S .




      I concur in the majority's disposition to the extent that it holds that the

Board of Immigration Appeals ('BIA') erred in relying on the egregious conduct

standard articulated in Matter of Compean, Bangaly & J-E-C- (Compean I), 24

I&N Dec. 710 (A.G. 2009). See Matter of Compean, Bangaly & J-E-C- (Compean

II), 25 I&N Dec. 1, 3 (A.G.2009) (vacating Compean I), 24 I&N Dec. 710 (A.G.

2009). However, I dissent from the remainder of the majority's disposition.

      The majority finds that Franco's attorney's failure to include portions of the

Harvard report is facial ineffective assistance of counsel in contravention of Matter

of Lozada, 19 I&N Dec. 637 (BIA 1988). I disagree. Franco conceded that he did

not comply with the Lozada requirements and the BIA concluded that while the

omitted material might have been relevant - and might even have presented a more

compelling case for Franco - the submission of the omitted portions of the report

would not maµe it more liµely than not that Franco would be entitled to protection

under the CAT and that the failure of Franco's attorney to include the omitted

portions did not rise to the level of ineffective assistance of counsel. Specifically,

the BIA determined that the omitted material did not demonstrate that Franco was

liµely to be tortured. Furthermore, the BIA noted that the entire Harvard report did

not overcome the other evidence in the record considered by the Immigration
Judge, which included a State Department Issue Paper.

      The BIA's determination that the material in the Harvard report did not

overcome the other evidence in the record regarding Franco's CAT claim is not an

unreasonable evaluation of Franco's case and we are not entitled to reweigh the

evidence on appeal. Donchev v. Muµasey, 553 F.3d 1206, 1213 (9th Cir. 2009);

Kotasz v. I.N.S., 31 F.3d 847, 851 (9th Cir. 1994). Accordingly, despite the BIA's

error in relying on Compean I, I would affirm the BIA's ineffective assistance of

counsel determination.

      I would also affirm the BIA's lacµ of prejudice determination. At issue here

is whether the omitted portions of the Harvard report would have affected whether

or not the BIA granted Franco's CAT claim. The BIA gave specific reasons for

why the omitted material in the Harvard report would not affect Franco's CAT

claim. In context, it is clear that the BIA reasonably concluded that the submission

of the entire Harvard report would not have affected the outcome of Franco's

claim, so remand on this issue is unnecessary and again fails to respect the

deferential standard of review we owe the BIA. See, e.g., Halim v. Holder, 590

F.3d 971, 975 (9th Cir. 2009).




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