                                                                              FILED
                             NOT FOR PUBLICATION                              MAY 20 2014

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



                             FOR THE NINTH CIRCUIT


ROMMEL ANTHONY VALBUENA; et                      No. 09-72749
al.,
                                                 Agency Nos.        A098-263-631
              Petitioners,                                          A098-263-719
                                                                    A098-263-743
  v.                                                                A098-263-744

ERIC H. HOLDER, Jr., Attorney General,
                                                 MEMORANDUM*
              Respondent.



ROMMEL ANTHONY VALBUENA; et                      No. 10-71967
al.,
                                                 Agency Nos.        A098-263-631
              Petitioners,                                          A098-263-719
                                                                    A098-263-743
  v.                                                                A098-263-744

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                         -2-
                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted May 16, 2014
                             San Francisco, California

Before: SILVERMAN and GOULD, Circuit Judges, and LEMELLE, District
Judge.**


      Rommel Anthony Valbuena, his wife Maria Teresa Valbuena, and their

minor children Erika Nicole Valbuena and Giancarlo Valbuena, bring this

consolidated appeal challenging (1) the BIA’s July 31, 2009 order affirming the

Immigration Judge’s denial of their requests for asylum, withholding of removal,

and protection under the Convention Against Torture, and (2) the BIA’s June 11,

2010 denial of their motion to reopen their case.

      We have jurisdiction pursuant to 8 U.S.C. § 1252. We GRANT the petition

for review of the BIA’s denial of the motion to reopen in case number 10-71967,

and we remand for further proceedings. We DISMISS AS MOOT the petition for

review in case number 09-72749.

      This Court reviews the BIA’s denial of a motion to reopen for an abuse of

discretion, and reviews de novo questions of law, “including claims of due process



       **
             The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
                                        -3-
violations due to ineffective assistance.” Mohammed v. Gonzales, 400 F.3d 785,

791–92 (9th Cir. 2005); see also Kwong v. Holder, 671 F.3d 872, 880 (9th Cir.

2011).

      To establish prejudice from ineffective assistance of counsel, the Valbuenas

must show that “the performance of counsel was so inadequate that it may have

affected the outcome of the proceedings.” Morales-Apolinar v. Mukasey, 514 F.3d

893, 898 (9th Cir. 2008) (quoting Munoz v. Ashcroft, 339 F.3d 950, 955 (9th

Cir.2003)) (emphasis in original). The BIA did not articulate the standard it

applied in determining prejudice, but the Valbuenas have plausible grounds for

relief. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004). The BIA

therefore abused its discretion in denying the motion to reopen.

      The petition for review in case number 10-71967 is GRANTED and we

remand to the BIA with instructions to reopen and remand the case to the IJ for

further proceedings consistent with this memorandum. The petition for review in

case number 09-72749 is DISMISSED AS MOOT.
