NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL QUIJADA CORONADO,

Petitioner,

v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. No. 15

- 71445 Agency No. A012

- 632

- 641

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 7, 2018 Pasadena, California Before: GRABER, W. FLETCHER, and OWENS, Circuit Judges. Following this court’s partial granting of his previous petition for review, Petitioner Raul Quijada Coronado petitions for review of an order of t he Board of Immigration Appeals (“BIA”) dismissing his remanded appeal. As the parties are
familiar with the facts, we do not recount them here. We have juris diction under 8 U.S.C. § 1252 , and we grant the petition and remand with instructions.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

APR 2 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

1. Because no intervening higher authority is clearly irreconcilable with this court’s holding in Coronado v. Holder , 759 F.3d 977, 982

- 85 (9th Cir. 2014), that California Health & Safety Code § 11377(a) is a divisible statute subject to the modified categorical approach, this panel may not reconsider that decision’s conclusion that the BIA did not err in finding Petiti oner inadmissible, see id. at
985

- 86; see also Miller v. Gammie , 335 F.3d 889, 892

- 93 (9th Cir. 2003) (en banc)
2

. Contrary to Respondent’s argument, this court has “ jurisdiction to review constitutional claims” raised in a petition for review, including due

- process claims,
“even when those claims a ddress a discretionary decision ” such as the denial of
cancellation of removal. Ramirez

- Perez v. Ashcroft , 336 F.3d 1001, 1004 (9th Cir. 2003) ; see also 8 U.S.C. § 1252(a)(2)(D). B ecause Petitioner’s claims are constitutional, this court has jurisdiction over his petition.
3

. Contrary to Respondent’s argument, the Fifth Amendment ’s Due Process Clause applies to Petitioner’s applicatio n for cancellation of removal, Salgado

Diaz v. Gonzales , 395 F.3d 1 158, 1162 (9th Cir. 2005) , including the rights to “a full and fair hearing of [one’s] claims and a reasonable opportunity to present evidence on [one’s] behalf,” id. (quoting Colmenar v. INS , 210 F.3d 967, 971 (9th Cir. 2000)) ; the right to a “neutral jud ge,” Reyes

- Melendez v. INS , 342 F.3d 1001, 1006 (9th Cir. 2003); and the right to competent representation by one’s retained counsel, e.g. , Avagyan v. Holder , 646 F.3d 672, 677 (9th Cir. 2011).3

4

. The government concedes that Petitioner’s attorney ’s perfo rmance both before and during the removal hearing was deficient

. Especially in light of the immigration judge’s (“IJ”) comment that “I do think it’s a close case,” we are persuaded that the attorney’s deficient performance prejudiced Petitioner because it “may have affected the outcome of the proceedings

. ” Correa

- Rivera v. Holder , 706 F .3d 1128, 1133 (9th Cir. 2013) (quoting Ortiz v. INS , 179 F.3d 1148, 1153 (9th Cir. 1999))

. 5

. We therefore grant the petition and remand to the BIA with instr uctions

to order a new hearing on Petitioner’s application for cancellation of removal. We urge the BIA to assign the new hearing to a different IJ. 1 See Smolniakov a v. Gonzales , 422 F.3d 1037, 1054 (9th Cir. 2005); Perez

- Lastor v. INS , 208 F.3d 773,
783 (9th Cir. 2000). PETITION GRANTED; REMANDED with instructions
.

1 Because we grant the petition on other grounds, we need not reach the issue of the IJ’s bias. See, e.g. , Shafer v. Cty. of Santa Barbara , 868 F.3d 1110, 1114 n.2 (9th Cir. 2017).