Avila-Carrasco

MEMORANDUM **

Moisés Avila-Carrasco, a citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen his removal proceedings in order to reconsider his application for cancellation of removal or, in the alternative, voluntary departure.

We lack jurisdiction to review Avila’s claim that the BIA erred in finding that he had not established that removal would impose “exceptional and extremely unusual hardship” on his two children. See Romero-Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir.2003). Accordingly, we dismiss the petition insofar as it seeks review of that finding and the concomitant denial of cancellation of removal.

We have jurisdiction under 8 U.S.C. § 1252 over Avila’s claim that the BIA abused its discretion in denying his motion to reopen because of ineffective assistance of counsel. We review the BIA’s ruling on a motion to reopen for abuse of discretion. See Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.2004). We review the BIA’s findings of fact regarding counsel’s performance for substantial evidence. See id. at 1024 .

Avila and his counsel failed to present certain testimony and evidence at his removal…

(dissenting).

“[T]he BIA must indicate with specificity that it heard and considered petitioner’s claims” in the ineffective assistance context. Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004) (internal quotations omitted) (quoting Arrozal v. INS, 159 F.3d 429, 433 (9th Cir.1998)). The denial of a motion to reopen should be remanded if the BIA has not considered the relevant factors and articulated the corresponding reasoning. See, e.g., Virk v. INS, 295 F.3d 1055, 1060 (9th Cir.2002) (remanding where BIA did not consider factors in petitioner’s favor, and where it considered an irrelevant factor); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002) (rejecting the BIA’s “cursory recitation and generalized analysis of the equities in favor of petitioners’ claim”).

The BIA did not discuss the conflict between Avila-Carrasco’s version of his representation — in particular, the evidence-gathering process — and the recollection of his former counsel. It merely recited that Avila’s former counsel was not responsible for the deficiencies, apparently relying on her self-serving “detailed affidavit” saying as much, and failed to mention that a contrary detailed…