Ruiz-Flores v. Gonzales

MEMORANDUM ** Jose Luis Ruiz-Flores, his wife Gloria Rojas-Chavez and daughter Andrea Celeste Ruiz-Rojas petition for review of an order of the Board of Immigration Appeals (“BIA”) denying their motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252 . Reviewing for abuse of discretion, Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir. 2004) (per curiam), we grant the petition for review, and remand. The BIA abused its discretion when it applied the wrong standard to determine whether the performance of prior counsel resulted in prejudice to Ruiz-Flores and Rojas-Chavez. The BIA required Ruiz-Flores and Rojas-Chavez to demonstrate *810 their eligibility for cancellation of removal, when they need only demonstrate that the deficient performance by counsel may have affected the outcome of proceedings. See id. at 858-59 (BIA abused its discretion when it determined that counsel’s performance did not result in prejudice by directly adjudging whether the petitioners would win or lose their claim). Accordingly, we remand for the BIA to determine, under the correct standard, whether Ruiz-Flores and Rojas-Chavez were prejudiced by prior counsel’s conduct. If either Ruiz-Flores’ or Rojas-Chavez’s application for cancellation of removal is ultimately granted, the agency should consider Ruiz-Rojas’ claim that her removal would result in the requisite hardship to her parents. 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.