                                                                            FILED
                    UNITED STATES COURT OF APPEALS                           JUN 10 2011

                                                                      MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                      U.S. COURT OF APPEALS




PEDRO CRUZ-CARBAJAL and                       No. 06-74999
ANDREA GALEANA ALONZO,
                                              Agency Nos. A095-184-049
              Petitioners,                                A095-107-826

  v.
                                              ORDER
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.

       Respondent’s motion to amend the memorandum disposition is granted. The

memorandum disposition filed April 25, 2011, is amended to appear as filed

concurrently with this Order. Judge Bybee’s dissent is unchanged from the

original filed on April 25, 2011.
                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                             FOR THE NINTH CIRCUIT                              JUN 10 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

PEDRO CRUZ-CARBAJAL; ANDREA                      No. 06-74999
GALEANA ALONZO,
                                                 Agency Nos. A095-184-049
              Petitioners,                                   A095-107-826

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

              Respondent.


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

                       Argued and Submitted April 11, 2011
                              Pasadena, California

Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.

       Petitioners Pedro Cruz-Carbajal and Andrea Galeana Alonzo petition for

review of the decision of the Board of Immigration Appeals (BIA) denying their

motion to reopen. As the facts and procedural history are familiar to the parties,

we do not recite them here except as necessary to explain our disposition.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We lack jurisdiction over Petitioners’ unexhausted procedural due process

arguments, Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004), Petitioners’

disagreement with the underlying hardship determination, 8 U.S.C.

§ 1252(a)(2)(B)(i), and Petitioners’ challenge to the BIA’s refusal to reopen

proceedings to address new evidence of hardship, Fernandez v. Gonzales, 439 F.3d

592, 602–03 (9th Cir. 2006). Those claims are dismissed for lack of jurisdiction.

      We have jurisdiction over Petitioners’ ineffective assistance of counsel

claim. Fernandez, 439 F.3d at 602–03. This claim is exhausted because it was

properly raised in a timely motion to reopen, see Iturribarria v. INS, 321 F.3d 889,

896–97 (9th Cir. 2003), and, in any event, the BIA decided it on the merits, Socop-

Gonzalez v. INS, 272 F.3d 1176, 1186 (9th Cir. 2001) (en banc).

      The BIA erred by concluding that Petitioners’ counsel’s performance was

adequate. Petitioners submitted unrebutted evidence to the BIA that they “never

met” the attorney who represented them at their final hearing before the

Immigration Judge, their attorney was “unprepared and unfamiliar with [their]

files,” and their attorney “did not allow any of [their] witness[es] to speak to the

Judge,” even though the witnesses were present and prepared to testify.

Petitioners’ counsel failed to introduce any evidence about Petitioners’ parents’

hardship (though such evidence was elicited by the Government on cross-

examination), and told Petitioners that it was “not . . . important” to submit
documentation about their parents’ health problems. Our cases have deemed

similar conduct to constitute inadequate performance. E.g., Morales Apolinar v.

Mukasey, 514 F.3d 893, 898–99 (9th Cir. 2008); Jie Lin v. Ashcroft, 377 F.3d

1014, 1024–26 (9th Cir. 2004). The BIA erred as a matter of law when it reached

the contrary conclusion.

      The BIA also erred to the extent that it addressed prejudice under a “prima

facie eligibility” standard. Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th

Cir. 2004) (per curiam). We remand so that the BIA can address prejudice in the

first instance and under the proper legal standard. See INS v. Ventura, 537 U.S. 12,

16 (2002) (per curiam).

      Each party shall bear its own costs.

      Petition for review DISMISSED IN PART and GRANTED IN PART;

REMANDED.
                                                                                FILED
Cruz-Carbajal v. Holder, No. 06-74999                                            JUN 10 2011

                                                                            MOLLY C. DWYER, CLERK
BYBEE, Circuit Judge, concurring in part and dissenting in part:              U.S. COURT OF APPEALS



      I agree with the majority that we lack jurisdiction to review the BIA’s denial

of Petitioners’ motion to reopen based on new evidence of hardship, and that

Petitioners’ failure to exhaust their procedural due process arguments preclude

them from raising them before us at this time. The majority also correctly

determines that we have jurisdiction over Petitioners’ ineffective assistance of

counsel claim. The majority veers off course, however, in finding that Petitioners

met the heavy burden of demonstrating that counsel who represented Petitioners in

proceedings before the Immigration Judge (“IJ”) performed inadequately.

      An alien subject to a final order of removal may be entitled to a new hearing

if prior counsel’s performance was so deficient that it resulted in “proceeding[s] . .

. so fundamentally unfair that the alien was prevented from reasonably presenting

his case.” Jie Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004) (quoting Lopez

v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985)). In light of this high standard,

overturning the BIA’s fact-finding on this issue requires more than the analysis the

majority performed here.

      While the performance of Petitioners’ counsel before the IJ was far from

exemplary, the record supports the BIA’s finding that counsel’s performance was

not so poor as to deprive Petitioners of the opportunity to fairly present their case.
With the guidance of counsel, Petitioners were able to establish that they met all of

the criteria for withholding of removal, save for “exceptional and extremely

unusual hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(1)(D). Both

Petitioners testified about the hardship their removal would impose on Ms.

Alonzo’s parents, although the parents themselves did not testify. Petitioners’

counsel also presented a report on the psychological condition of Petitioner’s

daughter by her psychiatrist, but the psychiatrist was not called to testify. Had

counsel called on the parents and the psychiatrist to testify, Petitioners might have

been able to put forward a marginally stronger case on hardship. But the relevant

question is whether failure to call these witnesses prevented Petitioners from

“reasonably presenting [their] case,” Jie Lin, 377 F.3d at 1023, not whether counsel

failed to present their best case.

      Because Petitioners cannot show that counsel’s performance was

constitutionally inadequate, it was not necessary for the BIA to address prejudice.

I therefore would deny the petition for review with respect to the ineffective

assistance of counsel claim.




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