Gutierrez-Duenas

MEMORANDUM *

Petitioner Jesus Gutierrez-Duenas (“Duenas”) filed two petitions for review that were consolidated in this action. The first petition seeks review of the BIA’s summary affirmance of the IJ’s denial of Duenas’s application for cancellation of removal. The second petition seeks review of the BIA’s denial of Duenas’s second motion to reopen based on ineffective assistance of counsel. Dueñas claims that his lawyer failed to provide sufficient evidence of hardship when she filed his first motion to reopen, and that she failed to preserve his right to appeal the BIA’s denial of the first motion to reopen. We grant both petitions for review.

The IJ denied Duenas’s application for cancellation of removal on two grounds: (1) Duenas’s failure to establish that he had lived continuously in the U.S. for at least ten years; and, (2) Duenas’s failure to show that his removal would result in the requisite degree of hardship to his two U.S. citizen children. See 8 U.S.C. § 1229b(b)(1). The BIA summarily affirmed.

When the BIA does not perform an independent review of the IJ’s decision and instead defers to the IJ, we review the IJ’s decision. San Pedro v. Ashcroft, 372 F.3d 1118,…