Escobar-Contreras

MEMORANDUM *

Petitioner Israel Eseobar-Contreras was denied suspension of deportation because he failed to establish extreme' hardship. Thereafter he filed a motion to reopen with the Board of Immigration Appeals (“BIA”) based on ineffective assistance by his former counsel. The BIA denied his motion. On appeal, EscobarContreras claims that the BIA abused its discretion by concluding that he was not prejudiced by his former counsel’s errors.

Citing Coleman v. Thompson, 501 U.S. 722 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991), the government argues that a petitioner cannot assert an ineffective assistance of counsel claim (“LAC”) in removal proceedings. Our circuit precedent is to the contrary, see Fong Yang Lo v. Ashcroft, 341 F.3d 934, 939 (9th Cir.2003), and, until now, the government has accepted this view. We see no reason to change our well established rule and, in any event, this “panel not sitting en banc may not overturn Ninth Circuit precedent,” Nichols v. McCormick, 929 F.2d 507 , 510 n. 5 (9th Cir.1991).

Nevertheless, in order to prevail on an IAC claim, a petitioner must show prejudice. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003). We agree with the BIA…