Raja Aftab Akbar v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAJA AFTAB AKBAR,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-73565
Agency No. A075-306-278
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2013**
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Raja Aftab Akbar, a native and citizen of Pakistan, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
and to reissue its previous decision based on ineffective assistance of counsel. We
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
FILED
MAR 25 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-73565 2
denial of a motion to reopen, and review de novo questions of law. Mohammed v.
Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We grant the petition for review
and remand to the BIA.
The BIA abused it discretion in denying Akbar’s motion to reopen and
reissue. The BIA erred in finding that Akbar is barred from discretionary relief
under 8 U.S.C. § 1229c(d)(1)(B). Because Akbar was unaware that his counsel
failed to preserve the voluntary departure period despite securing a stay of removal
while his prior petition for review was pending before this court, he did not
voluntarily fail to depart during his voluntary departure period. See Matter of
Zmijewska, 24 I. & N. Dec. 87 (BIA 2007). Akbar was therefore prejudiced by his
attorney’s failure to preserve his grant of voluntary departure. See Mohammed,
400 F.3d at 793-794 (prejudice is established when counsel’s errors “may have
affected the outcome of the proceedings”).
We remand to the BIA for further proceedings consistent with this
disposition.
PETITION FOR REVIEW GRANTED; REMANDED.

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