                                                                           FILED
                              NOT FOR PUBLICATION                           FEB 14 2013

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




                               FOR THE NINTH CIRCUIT



ARMEN AMIRKHANYAN, a.k.a. Armen                    No. 11-71835
Amirkhanian; GAYANE MAGHAKYAN,
                                                   Agency Nos. A075-758-453
               Petitioners,                                    A097-854-240

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

               Respondent.



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

                              Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Armen Amirkhanyan and Gayane Maghakyan, natives and citizens of

Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) order

denying their motion to reopen based on ineffective assistance of counsel. We




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

denial of a motion to reopen and review de novo claims of due process violations.

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

petition for review and remand for further proceedings.

      The BIA abused its discretion in denying petitioners’ motion to reopen based

on the ineffective assistance of the attorney who represented them before the

agency, where petitioners established that their attorney failed to sufficiently

prepare their case, they advised their attorney of available corroborating evidence

but the attorney failed to introduce such evidence, and these failures may have

affected the agency’s adverse credibility finding. See Mohammed, 400 F.3d at

793-94 (prejudice results when counsel’s actions may have affected the outcome of

proceedings). Moreover, the BIA’s failure to mention the highly probative

affidavits of the two witnesses who would have testified in support of petitioners’

claim was an abuse of discretion. See Cole v. Holder, 659 F.3d 762, 771-72 (9th

Cir. 2011).

      We therefore grant the petition for review and remand to the BIA for further

proceedings consistent with this disposition.

      Because the government concedes that the BIA did not deny petitioners’




                                           2                                       11-71835
motion as untimely, the issue of equitable tolling is not before us.

      PETITION FOR REVIEW GRANTED; REMANDED.




                                           3                           11-71835
