Camero v. Gonzales

MEMORANDUM ** Maria Crucifixa Bustos Camero and her two children, Kathy Dennis Salazar Bustos and Eber Jese Salazar Bustos, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from the Immigration Judge’s (“IJ”) order denying their motion to reopen proceedings based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review the denial of a motion to reopen for abuse of discretion, and review claims of due process violations due to ineffective assistance of counsel de novo. See Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We grant the petition for review. We disagree with the IJ and BIA that petitioners failed to demonstrate that their representative’s failure to timely perfect their appeal resulted in prejudice. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) (failure to file a timely appeal creates a rebuttable presumption of prejudice). Prior counsel’s untimely filing prejudiced Petitioners in that Petitioners lost the benefit of voluntary departure, and were barred from adjusting status for ten years. See id. at 827 ; see also 8 U.S.C. § 1229c(d) (alien who fails to depart pursuant to voluntary departure order is ineligible for certain forms of relief, including *430 adjustment of status, for a period of 10 years). PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.