                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 02 2010

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




                             FOR THE NINTH CIRCUIT



FRANCISCO NUNEZ-ALVAREZ,                         No. 08-73396

               Petitioner,                       Agency No. A074-787-557

  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.

       Francisco Nunez-Alvarez, a native and citizen of Mexico, petitions for

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

reopen based on ineffective assistance of counsel. We have jurisdiction under

8 U.S.C. § 1252. See Fernandez v. Gonzales, 439 F.3d 592, 602 (9th Cir. 2006)


          *
             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).
(court has jurisdiction to consider hardship evaluations in the context of the

agency’s prejudice determinations). We review for abuse of discretion the denial

of a motion to reopen, and review de novo claims of due process violations due to

ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92

(9th Cir. 2005). We grant the petition for review.

      The BIA concluded that Nunez-Alvarez failed to demonstrate that his former

counsel’s withdrawal of his application for special rule cancellation of removal

pursuant to 8 U.S.C. § 1229b(b)(2) prejudiced Nunez-Alvarez’s claim for this form

of relief, because Nunez-Alvarez did not demonstrate that his removal would result

in extreme hardship to himself or his qualifying relatives. However, the BIA

addressed only the evidence included with the motion, and it did not consider this

evidence in aggregate with the evidence of hardship presented before the IJ. See

Franco-Rosendo v. Gonzales, 454 F.3d 965, 966 (9th Cir. 2006) (the BIA abuses

its discretion when it fails to “consider and address in its entirety the evidence

submitted by a petitioner”) (internal quotation marks and citation omitted); Matter

of Ige, 20 I. & N. Dec. 880, 882 (BIA 1994) (relevant hardship factors “must be

considered in the aggregate in determining whether extreme hardship exists”). The

BIA therefore abused its discretion in denying Nunez-Alvarez’s motion to reopen.




                                           2                                     08-73396
See Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000) (agency abuses its discretion

when it acts “arbitrarily, irrationally, or contrary to law”).

      We remand for the BIA to determine, in light of the entire record, whether

Nunez-Alvarez’s former counsel’s actions “may have affected the outcome of the

proceeding.” Mohammed, 400 F.3d at 794 (internal quotation omitted).

      PETITION FOR REVIEW GRANTED; REMANDED.




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