Suhua Qiu v. Jefferson Sessions, 693 F. App'x 490

Petitioner Suhua Qiu appealed two BIA orders: one upholding an IJ’s finding that his asylum application was frivolous, and one denying his motion to reopen administrative proceedings.
Qiu’s motion to reopen alleged ineffective assistance by his attorneys (first counsel and a second lawyer who handled the appeal/related proceedings).
The Board denied the motion to reopen because Qiu did not present evidence beyond the record showing former counsel’s performance was deficient, concluding he should have raised ineffective-assistance earlier on appeal.
The Ninth Circuit reviewed only the Board’s denial of the motion to reopen for abuse of discretion and granted review pursuant to 8 U.S.C. § 1252.
The panel found the Board erred by (1) failing to distinguish between the two attorneys’ performances (the second attorney’s failings could not have been raised before the appeal concluded) and (2) treating the failure to raise ineffective-assistance earlier as a bar to litigating that very claim.
The court remanded for the Board to apply the Maravilla analysis (competence and prejudice) to Qiu’s ineffective-assistance claim and expressed no view on the merits of the motion or the frivolous-asylum finding.

Issue	Qiu's Argument	Sessions' Argument	Held
Whether the BIA abused discretion by denying Qiu’s motion to reopen based on lack of new evidence of counsel deficiency	Qiu argued his motion raised ineffective assistance by both attorneys and that his second lawyer’s failure to challenge the first lawyer was itself ineffective; thus reopening is warranted	Respondent argued Qiu failed to present evidence beyond the existing record showing counsel was deficient and should have raised issues on appeal	Court: BIA abused discretion. It improperly concluded Qiu could have raised all claims earlier and failed to analyze competence and prejudice under Maravilla
Whether a failure to raise ineffective-assistance on appeal can be used to deny a subsequent ineffective-assistance motion to reopen	Qiu argued that the second lawyer’s omission is a distinct ineffective-assistance claim that could not have been raised until after the appeal	Sessions argued prior opportunity to raise claims meant motion lacked new evidence and could be denied	Court: BIA erred — it short-circuited the required Maravilla two-prong analysis and cannot bar a claim by relying on counsel’s allegedly ineffective omission

Meza-Vallejos v. Holder, 669 F.3d 920 (9th Cir. 2012) (standard of review for denial of motion to reopen)
Ontiveros-Lopez v. INS, 213 F.3d 1121 (9th Cir. 2000) (definition of abuse of discretion)
Maravilla v. Ashcroft, 381 F.3d 855 (9th Cir. 2004) (two-prong ineffective-assistance test: competence and prejudice for motions to reopen)
Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004) (discussion of prejudice and ineffective assistance standards)