                                                                           FILED
                              NOT FOR PUBLICATION                           JUN 11 2010

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




                              FOR THE NINTH CIRCUIT



MAYRA DELGADILLO DE PEREZ;                       Nos. 07-74012
JOSE ALFREDO PEREZ HERNANDEZ,                         08-71599

               Petitioners,                      Agency Nos. A097-347-153
                                                             A097-347-154
  v.

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

               Respondent.



                       On Petitions for Review of Orders of the
                           Board of Immigration Appeals

                              Submitted May 25, 2010 **

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

       In these consolidated petitions for review, Mayra Delgadillo De Perez and

Jose Alfredo Perez Hernandez, natives and citizens of Mexico, petition for review

of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration

          *
             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).

                                                                       07-74012/08-71599
judge’s (“IJ”) decision denying their applications for cancellation of removal, and

the BIA’s order denying their motion to reopen proceedings based on ineffective

assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review de

novo due process claims, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th

Cir. 2003), and for abuse of discretion the denial of a motion to reopen, Maravilla

Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir. 2004) (per curiam). We grant

the petition for review in No. 08-71599, and dismiss the petition for review in No.

07-74012.

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

because it applied the wrong standard to determine whether the performance of

prior counsel resulted in prejudice. See id. at 858-59 (BIA abused its discretion

when it determined that counsel’s performance did not result in prejudice by

directly adjudicating whether the petitioners would win or lose their claim). The

BIA required petitioners to demonstrate eligibility for cancellation of removal,

when they need only demonstrate that counsel’s performance “may have affected

the outcome of the proceedings” before the IJ. See id. (quoting Iturribarria v. INS,

321 F.3d 889, 900 (9th Cir. 2004)). We therefore remand for the BIA to

determine, under the correct standard, whether petitioners were prejudiced by prior

counsel’s conduct.


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      We need not address the petition for review in No. 07-74012 in light of our

disposition in No. 08-71599.

      IN NO. 07-74012:         PETITION FOR REVIEW DISMISSED.

   IN NO. 08-71599:     PETITION FOR REVIEW GRANTED;
REMANDED. Respondent shall bear the costs for this petition for review.




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