Juarez-Baez

dissenting.

I cannot agree that counsel’s performance in this case “fell below an objective standard of reasonableness” as required by Strickland v. Washington, 466 U.S. 668, 688 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). We may find ineffective assistance only in egregious cases, where “counsel’s performance rendered the proceeding ... so fundamentally unfair that [Juarez-Baez] was prevented from reasonably presenting [her] case.” Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004) (internal quotation marks omitted); see also Castillo-Perez v. INS, 212 F.3d 518, 522 (9th Cir. 2000) (finding ineffective assistance where counsel failed to file an application for suspension of deportation, and erroneously informed his client that the application had been timely filed). Counsel is presumed to have assisted effectively. Pizzuto v. Arave, 280 F.3d 949, 954 (9th Cir.2002) (“there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance”) (internal quotation marks omitted). Before we condemn his assistance, we must “reconstruct the circumstances of counsel’s challenged conduct” and “evaluate the conduct from counsel’s perspective at…

MEMORANDUM **

Maria Juarez-Baez appeals the Board of Immigration Appeal’s (“BIA”) 2003 denial of her motion to reopen claiming ineffective assistance of counsel and seeking to introduce new evidence showing a decline in her daughter, Esmerelda’s, health. We grant the petition for review and remand to the BIA for further proceedings.

We review the denial of a motion to reopen for an abuse of discretion. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004). We review ineffective assistance of counsel claims de novo. See Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1044-45 (9th Cir.2000).

Juarez-Baez initially sought relief from removal in the form of suspension of deportation before the immigration judge. Petitioners have a due process right to effective assistance of counsel when applying for discretionary relief. Castillo-Perez v. INS, 212 F.3d 518, 526-27 (9th Cir. 2000); Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004). In order to establish ineffective assistance of counsel, Juarez-Baez must show both that her counsel failed to perform with sufficient competence and that she suffered prejudice. See Lin, 377 F.3d at 1027 .

*665 With respect to deficient…