                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 24 2010

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




                             FOR THE NINTH CIRCUIT



 EDWIN GEOVANI ARGUETA-                          No. 07-72499
 JORDAN,
                                                 Agency No. A078-536-414
               Petitioner,

   v.                                            MEMORANDUM *

 ERIC H. HOLDER Jr., Attorney General,

               Respondent.



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

                             Submitted March 16, 2010 **

Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Edwin Geovani Argueta-Jordan, a native and citizen of Guatemala, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order denying his

motion to reopen removal proceedings due to ineffective assistance of counsel.

          *
             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).

LA/Research
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of

discretion the denial of a motion to reopen, and de novo claims of due process

violations, including claims of ineffective assistance of counsel in immigration

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

grant the petition for review and remand.

       The BIA’s conclusion that Argueta-Jordan’s counsel’s representation before

the immigration judge was sufficient is not supported by the record. See

Mohammed, 400 F.3d at 793 (alien must demonstrate constitutionally deficient

counsel and prejudice to prevail on an ineffective assistance of counsel claim).

The immigration judge (“IJ”) noted several ways in which counsel’s performance

was “shameful” and “absurd.” Of particular concern, counsel failed to submit an

application for adjustment of status, although petitioner’s wife was a United States

citizen, petitioner has an approved I-130 visa, and the IJ appears to have taken

petitioner’s testimony that he entered the United States legally in 1992 as credible.

       This failure to present the adjustment claim to the IJ may have affected the

outcome of his removal proceeding. See Ray v. Gonzales, 439 F.3d 582, 587 (9th

Cir. 2006). We therefore grant the petition for review, and remand to the BIA.

       The parties shall bear their own costs for this appeal.

       PETITION FOR REVIEW GRANTED; REMANDED.


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