Guillermo VARGAS-CANO; Maria del Carmen Vargas-Cordero, Petitioners, v. Eric H. HOLDER Jr., Attorney General, Respondent, 375 F. App'x 724

MEMORANDUM Guillermo Vargas-Cano and Maria Del Carmen Vargas-Cordero, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We grant the petition for review. The BIA abused its discretion in denying the motion by using an inappropriate standard of review. See Maravilla Mara-villa v.

Ashcroft, 381 F.3d 855, 858 (9th Cir.2004). Although the BIA appropriately considered whether ineffective assistance “may have affected the case,” it applied too stringent a standard when it stated that “we are not compelled to find” that counsel’s performance was so inadequate as to meet that standard. See id. at 858-59. Accordingly, we grant the petition for review, and remand for the BIA to consider whether competent counsel would have acted otherwise, and, if so, to consider under the correct standard whether petitioners were thereby prejudiced. 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.