Cortez-Herrera

MEMORANDUM **

Aaron Cortez-Herrera (“Cortez”), a native and citizen of Mexico, petitions for review from the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his motion to reopen based on ineffective assistance of counsel (“LAC”). We have jurisdiction pursuant to 8 U.S.C. § 1252 (b), and we grant the petition.

We review for abuse of discretion the BIA’s denial of a motion to reopen. Yeghiazaryan v. Gonzales, 439 F.3d 994, 998 (9th Cir.2006). Claims of ineffective assistance of counsel are reviewed de novo. Lin v. Ashcroft, 377 F.3d 1014, 1023-24 (9th Cir.2004). To assert an ineffective assistance of counsel claim, a petitioner must show: (1) that counsel failed to perform with sufficient competence, and (2) that the petitioner was prejudiced by counsel’s performance. Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir.2005).

Cortez established ineffective assistance of counsel at his removal hearing. He had a viable claim for discretionary relief. Yet, his attorney, who reassured Cortez that “everything was going according to plan” with his application for discretionary relief, failed to timely file the application before the IJ…