Agustinus David MONIAGA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent, 383 F. App'x 614

MEMORANDUM Agustinus David Moniaga, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen, and review de novo claims of due process violations in removal proceedings, including claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We grant the petition for review and remand.

The BIA abused its discretion by basing its prejudice inquiry on a heightened standard where it concluded that Moniaga failed to establish a prima facie case of eligibility for the relief sought. See Iturribarria v. INS, 321 F.3d 889, 899-90 (9th Cir.2003) (alien must demonstrate that counsel’s performance “was so inadequate that it may have affected the outcome of the proceedings”); Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004) (alien “need not show that they would win or lose on any claims”) (internal citation and quotation marks omitted).

We therefore remand for the BIA to reconsider its prejudice determination. 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.