Juan Imperio v. Eric Holder, Jr.

MEMORANDUM

Juan Nicolau Imperio, a native and citizen of the Philippines, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. Our jurisdiction is governed by 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 deny in part and grant in part the petition for review, and remand.

The BIA did not abuse its discretion in denying Imperio’s motion to reopen for failure to establish ineffective assistance of counsel because he was pro se at the time he waived his asylum claim before the immigration judge. See id. at 793 (petitioner must demonstrate that counsel failed to perform with sufficient competence).

The BIA also did not abuse its discretion in denying Imperio’s motion to reopen for failure to establish prima facie eligibility for adjustment of status. See 8 U.S.C. § 1255 (a)(3) (“an immigrant visa [must be] immediately available to the alien at the time the application [for adjustment of status] is filed”).

The BIA failed to address Imperio’s contention that he met the statutory requirements for cancellation of removal.…