                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 10 2010

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




                             FOR THE NINTH CIRCUIT



AGUSTINUS DAVID MONIAGA,                         No. 08-70406

               Petitioner,                       Agency No. A078-020-348

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

               Respondent.



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

                             Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Agustinus David Moniaga, a native and citizen of Indonesia, 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 for abuse of discretion the BIA’s denial of a motion to reopen, and review


          *
             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).
de novo claims of due process violations in removal proceedings, including claims

of 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 by basing its prejudice inquiry on a

heightened standard where it concluded that Moniaga failed to establish a prima

facie case of eligibility for the relief sought. See Iturribarria v. INS, 321 F.3d 889,

899-90 (9th Cir. 2003) (alien must demonstrate that counsel’s performance “was so

inadequate that it may have affected the outcome of the proceedings”); Maravilla

Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004) (alien “need not show that

they would win or lose on any claims”) (internal citation and quotation marks

omitted). We therefore remand for the BIA to reconsider its prejudice

determination.

      PETITION FOR REVIEW GRANTED; REMANDED.




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