FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DANIEL FLORES, AKA No. 15-73461 Richard Daniel Flores, Petitioner, Agency No. A013-068-941 v. WILLIAM P. BARR, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 13, 2019* Pasadena, California Filed July 18, 2019 Before: Kim McLane Wardlaw, Jay S. Bybee, and John B. Owens, Circuit Judges. Per Curiam Opinion * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 FLORES V. BARR SUMMARY** Immigration Granting in part and denying in part Daniel Flores’s petition for review of a decision of the Board of Immigration Appeals’ denying his untimely motion to reopen based on ineffective assistance of counsel, the panel concluded that the BIA applied standards more stringent than were proper in concluding that Flores had not established prejudice as a result of his prior counsel’s performance, and remanded. The BIA denied Flores’s motion to reopen on the ground that he failed to show his prior counsel’s performance resulted in prejudice with respect to any of the forms of relief he would pursue on reopening – asylum, withholding of removal, protection under the Convention Against Torture (CAT), and relief under former Immigration & Nationality Act § 212(c). Because the agency had concluded that Flores’s conviction for committing lewd and lascivious acts on a child under the age of 14 in violation of California Penal Code § 288(a) was an aggravated felony, the panel considered whether it had jurisdiction in light of 8 U.S.C. § 1252(a)(2)(C), which bars review of a final order of removal against an alien who is removable for having committed certain offenses. The panel concluded that it had jurisdiction to review: (1) the legal question of whether Flores’s conviction was an aggravated felony; and (2) the ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FLORES V. BARR 3 denial of the motion to reopen to the extent the decision rested on a ground other than the conviction. The panel explained that, to establish prejudice in the context of a motion to reopen based on ineffective assistance of counsel, it is not necessary for a petitioner to make out a prima facie case of eligibility for the ultimate relief sought—a petitioner need only show that counsel’s deficient performance “may have affected the outcome of the proceedings” by showing “plausible” grounds for relief. With respect to asylum and withholding of removal, the panel concluded that the BIA did not abuse its discretion in concluding that Flores suffered no prejudice, explaining that Flores’s § 288(a) conviction was a “sexual abuse of a minor” aggravated felony under this court’s precedent, and that Flores failed to identify any intervening higher authority that is clearly irreconcilable with that precedent. Because Flores was convicted of an aggravated felony with a sentence of more than five years, ...
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