                                                                            FILED
                             NOT FOR PUBLICATION                              DEC 17 2015

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



                             FOR THE NINTH CIRCUIT


FUJU SHANG,                                      No. 14-71355

              Petitioner,                        Agency No. A097-864-702

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted December 17, 2015**
                                Pasadena, California

Before: REINHARDT and CHRISTEN, Circuit Judges and SEDWICK,*** District
Judge.

      Petitioner Fuju Shang, a citizen of the People’s Republic of China, petitions

for review of the BIA’s denial of her motion to reopen based on ineffective

        *
             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).
        ***
             The Honorable John W. Sedwick, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
assistance of counsel before the Immigration Judge (IJ) and Board of Immigration

Appeals (BIA). We review the BIA’s denial of a motion to reopen for abuse of

discretion, Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004), and we

grant the petition.

      To “succeed on a claim of ineffective assistance of counsel, an alien must

show both error and prejudice.”1 Singh v. Ashcroft, 367 F.3d 1182, 1186 (9th Cir.

2004). Although the BIA did not abuse its discretion with respect to its conclusion

regarding the performance of Shang’s attorney before the IJ, it did so in denying

her claim based on his performance before the BIA. As the BIA recognized, her

prior attorney’s brief before the BIA was wholly ineffective in that it “did not

meaningfully contest the Immigration Judge’s finding that the harm she

experienced in China did not rise to the level of persecution, and did not address

any of the bases underlying the Immigration Judge’s finding that she failed to

establish a well-founded fear of persecution on account of her religion.” The BIA

nonetheless denied the motion because, in its opinion, the respondent failed to

demonstrate prejudice because she “has not shown that the outcome of [her] appeal

may have been different.”

      1
        A non-citizen must also comply with the procedural requirements of
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The government does not
dispute that Shang has satisfied those requirements here.

                                          2
      Here, the BIA considered the wrong question. Once the BIA determines that

appellate counsel’s performance has been ineffective, it must consider whether the

non-citizen has “plausible grounds for relief.” Lin v. Ashcroft, 377 F.3d 1014,

1027 (9th Cir. 2004) (internal quotations omitted). To establish plausible grounds

for relief, Shang need only “show that the BIA could plausibly have determined

that [she] was [eligible for relief] based on the record before it.” Singh, 367 F.3d at

1189 (second alteration in original). Here, “the BIA had ample evidence that could

plausibly have supported a finding that [Shang] was eligible for asylum” and

withholding of removal.2 Id. Shang testified credibly that she was arrested at an

underground church and spent six days in prison, where she was repeatedly beaten,

and that, after being released, she was fired from her job and forced to report to the

police twenty-three times. That Shang was arrested and beaten because of her

religious beliefs “makes out a plausible claim for eligibility for asylum and

withholding of removal.” Singh, 367 F.3d at 1189. Indeed, this circuit has held

that a similar factual record compelled a finding of past persecution. See Guo v.

Ashcroft, 361 F.3d 1194, 1204 (9th Cir. 2004).




      2
        Because the record does not demonstrate that Shang “is more likely than
not to be tortured in” China, however, we do not reverse the BIA’s denial of her
motion to reopen her Convention Against Torture claim.

                                           3
      We do not express an opinion as to whether the BIA should ultimately

reverse the denial of Shang’s asylum and withholding applications. Rather,

because we conclude that her “claims merit full consideration by the BIA,” Li, 377

F.3d at 1027, we GRANT her petition for review and REMAND so that she may

file a competent appellate brief with the BIA.

      REMANDED for further proceedings consistent with this disposition.




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