                                                                            FILED
                     UNITED STATES COURT OF APPEALS
                                                                             JUL 14 2017
                            FOR THE NINTH CIRCUIT                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS




SUHUA QIU,                                        Nos. 13-74294
                                                       14-71932
              Petitioner,
                                                  Agency No. A077-668-221
 v.

JEFFERSON B. SESSIONS III, Attorney               ORDER
General,

              Respondent.


Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.

      The petition for panel rehearing is GRANTED in part. We WITHDRAW our

previous memorandum disposition (Dkt. 47 in No. 13-74294, 40 in No. 14-71932)

and replace it with the one filed concurrently with this order. The petition for

rehearing is DENIED in all other respects.

      IT IS SO ORDERED.
                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            JUL 14 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SUHUA QIU,                                       No.   13-74294

              Petitioner,                        Agency No. A077-668-221

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.



SUHUA QIU,                                       No.   14-71932

              Petitioner,                        Agency No. A077-668-221

 v.

JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                             Submitted March 14, 2017**
                              San Francisco, California

Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.

      Petitioner Suhua Qiu petitions for review of two orders of the Board of

Immigration Appeals (Board). The first order dismissed his appeal from an

immigration judge’s (IJ) order holding his asylum application to be frivolous, and

the second denied his motion to reopen proceedings. We have jurisdiction pursuant

to 8 U.S.C. § 1252, and we grant the petition for review only with respect to the

Board’s denial of the motion to reopen.

      We “review the denial of a motion to reopen for abuse of discretion.” Meza-

Vallejos v. Holder, 669 F.3d 920, 923 (9th Cir. 2012). The Board “abuses its

discretion when its decision is ‘arbitrary, irrational, or contrary to law.’” Id.,

quoting Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000).

      The Board denied Qiu’s motion to reopen, which was based on his

attorneys’ allegedly ineffective assistance, because Qiu had not submitted any

evidence “beyond what was previously before either the Immigration Judge or the

Board that would reflect that former counsels’ performance was deficient.” In


         **
             The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).


                                            2
essence, the Board concluded that Qiu should have raised his ineffective assistance

argument during his appeal. This conclusion suffers from two defects. First, it fails

to distinguish between the allegedly ineffective performances of Qiu’s two

lawyers. Although Qiu conceivably could have challenged the first lawyer’s

performance on appeal, he necessarily could not have challenged the second

lawyer’s performance during the appeal until the appeal concluded. It was an

abuse of discretion to hold otherwise.

      Second, Qiu asserted in his motion that his second lawyer’s failure to argue

that his first lawyer performed ineffectively was ineffective assistance in its own

right. The Board’s conclusion that Qiu should have made the argument earlier

therefore “short-circuits the central questions: whether [Qiu’s] counsel was

unconstitutionally ineffective in failing to present the [argument] and, if so,

whether [Qiu] w[as] prejudiced by [his] counsel’s performance.” Maravilla

Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004). If allowed to stand, the

Board’s decision would permit the lawyer’s allegedly ineffective performance to

bar a challenge to that very performance. Instead, the Board should have

determined whether Qiu had shown that (1) his “counsel [failed to] perform with

sufficient competence,” and (2) he was prejudiced by that performance. Id.,

quoting Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004).


                                           3
      On remand, the Board should conduct the analysis described in Maravilla

Maravilla, which Qiu did not call to our attention until his petition for rehearing.

We emphasize that the Board abused its discretion only by failing to follow this

analysis; we express no view as to the merits of Qiu’s motion to reopen. In light of

our holding that the Board must reassess Qiu’s motion to reopen his administrative

proceedings, we do not reach the merits of the Board’s other order.

      PETITION GRANTED.




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