UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

SUHUA QIU,

Petitioner,

 v.

JEFFERSON B. SESSIONS III, Attorney

General,

Respondent.

Nos. 13-74294

14-71932

Agency No. A077-668-221

ORDER

Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.

The petition for panel rehearing is GRANTED in part. We WITHDRAW our

previous memorandum disposition (Dkt. 47 in No. 13-74294, 40 in No. 14-71932)

and replace it with the one filed concurrently with this order. The petition for

rehearing is DENIED in all other respects.

IT IS SO ORDERED.

FILED

JUL 14 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

SUHUA QIU, 

Petitioner,

 v.

JEFFERSON B. SESSIONS III, Attorney

General, 

Respondent. 

No. 13-74294

Agency No. A077-668-221

MEMORANDUM*

SUHUA QIU, 

Petitioner,

 v.

JEFFERSON B. SESSIONS III, Attorney

General, 

Respondent.

No. 14-71932

Agency No. A077-668-221

On Petition for Review of an Order of the

Board of Immigration Appeals

FILED

JUL 14 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
Submitted March 14, 2017** 

San Francisco, California

Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges. 

Petitioner Suhua Qiu petitions for review of two orders of the Board of

Immigration Appeals (Board). The first order dismissed his appeal from an

immigration judge’s (IJ) order holding his asylum application to be frivolous, and

the second denied his motion to reopen proceedings. We have jurisdiction pursuant

to 8 U.S.C. § 1252, and we grant the petition for review only with respect to the

Board’s denial of the motion to reopen.

We “review the denial of a motion to reopen for abuse of discretion.” MezaVallejos v. Holder, 669 F.3d 920, 923 (9th Cir. 2012). The Board “abuses its

discretion when its decision is ‘arbitrary, irrational, or contrary to law.’” Id.,

quoting Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000).

The Board denied Qiu’s motion to reopen, which was based on his

attorneys’ allegedly ineffective assistance, because Qiu had not submitted any

evidence “beyond what was previously before either the Immigration Judge or the

Board that would reflect that former counsels’ performance was deficient.” In

 ** The panel unanimously concludes these cases are suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

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essence, the Board concluded that Qiu should have raised his ineffective assistance

argument during his appeal. This conclusion suffers from two defects. First, it fails

to distinguish between the allegedly ineffective performances of Qiu’s two

lawyers. Although Qiu conceivably could have challenged the first lawyer’s

performance on appeal, he necessarily could not have challenged the second

lawyer’s performance during the appeal until the appeal concluded. It was an

abuse of discretion to hold otherwise.

Second, Qiu asserted in his motion that his second lawyer’s failure to argue

that his first lawyer performed ineffectively was ineffective assistance in its own

right. The Board’s conclusion that Qiu should have made the argument earlier

therefore “short-circuits the central questions: whether [Qiu’s] counsel was

unconstitutionally ineffective in failing to present the [argument] and, if so,

whether [Qiu] w[as] prejudiced by [his] counsel’s performance.” Maravilla

Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004). If allowed to stand, the

Board’s decision would permit the lawyer’s allegedly ineffective performance to

bar a challenge to that very performance. Instead, the Board should have

determined whether Qiu had shown that (1) his “counsel [failed to] perform with

sufficient competence,” and (2) he was prejudiced by that performance. Id.,

quoting Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004).

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On remand, the Board should conduct the analysis described in Maravilla

Maravilla, which Qiu did not call to our attention until his petition for rehearing.

We emphasize that the Board abused its discretion only by failing to follow this

analysis; we express no view as to the merits of Qiu’s motion to reopen. In light of

our holding that the Board must reassess Qiu’s motion to reopen his administrative

proceedings, we do not reach the merits of the Board’s other order.

PETITION GRANTED.

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