Hai Quang Vu v. Gonzales

MEMORANDUM **

Petitioner Hai Quang Vu (“Vu”), a Vietnamese National, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of two motions to reopen removal proceedings based on ineffective assistance of counsel. Vu also petitions for review of the BIA’s denial of a third motion to reopen. We have jurisdiction under 8 U.S.C. § 1252 (b) and review the denial of Vu’s motions to reopen for an abuse of discretion. See Siong v. INS, 376 F.3d 1030, 1036 (9th Cir.2004). The BIA commits an abuse of discretion when its denial of a motion to reopen is arbitrary, irrational or contrary to law. Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000). We grant Vu’s first petition, deny the second and remand for further proceedings.

I.

Vu asserts that the BIA abused its discretion in denying his first motion to reopen because the Board erroneously disregarded substantial evidence of his attorneys’ incompetence. We agree.

*653 Vu’s first counsel presented an incomplete and grammatically incorrect asylum application, did not submit relevant country condition reports, withdrew corroborating evidence, did not elicit…

concurring and dissenting:

I concur in the majority’s denial of Vu’s second petition for review and in its affir-mance of the Board of Immigration Appeals’ denial of Vu’s second motion to reopen.

I dissent from the majority’s determination that the Board of Immigration Appeals (“BIA”) abused its discretion in denying Vu’s first motion to reopen. In my view, the BIA’s denial was reasonably based on the questionable authenticity of the identification documents that Vu submitted and by the vague and nonrespon-sive answers Vu gave to the questions posed by the Immigration Judge (“IJ”). Certainly, counsel might have done more, but it was Vu’s own testimony that provided a solid basis for the IJ’s denial of relief. Moreover, Vu’s first motion to reopen did not set forth any evidence that overcame the IJ’s adverse credibility finding. As in my opinion, Vu has not shown that counsel’s performance was so inadequate that it may have affected the outcome of the proceedings (see Mohammed v. Gonzales, 400 F.3d 785, 793-94 (9th Cir.2005)), I respectfully dissent from the majority’s partial grant of relief.