Singh v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HOSHIYAR SINGH, 
Petitioner, No. 07-70500
v.
 Agency No.
A076-868-718
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
May 10, 2011—San Francisco, California

Filed July 21, 2011

Before: Betty B. Fletcher and Sidney R. Thomas,
Circuit Judges, and Nancy Gertner,
District Court Judge.*

Opinion by Judge B. Fletcher

*The Honorable Nancy Gertner, District Court Judge for the United
States District Court for Massachusetts, sitting by designation.

9677
9680 SINGH v. HOLDER

COUNSEL

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco,
California, for the petitioner.

Jessica Segall (argued), U.S. Department of Justice, Office of
Immigration Litigation, Washington, D.C., for the respondent.

OPINION

B. FLETCHER, Circuit Judge:

Hoshiyar Singh appeals from the BIA’s January 2007
denial of his motion to reopen premised on ineffective assis-
tance of counsel. Singh married a U.S. citizen during the pen-
dency of his appeal from the IJ’s denial of his affirmative
asylum application. He is the beneficiary of an approved
immediate relative visa, and seeks to reopen so that he may
apply for adjustment of status.

The BIA concluded that Singh’s prior counsel did not ren-
der ineffective assistance, because counsel made a “tactical”
decision to forgo seeking a stay of voluntary departure in
favor of filing a “motion to remand” with the Ninth Circuit.
Moreover, the BIA held that Singh was not prejudiced by
prior counsel’s failures, because he was ineligible for adjust-
ment of status on account of his voluntary failure to comply
with the BIA’s order of voluntary departure. We hold that
both conclusions constitute an abuse of discretion. Accord-
 SINGH v. HOLDER 9681
ingly, we grant the petition for review and remand to the BIA
for further proceedings consistent with this opinion.

I.

Singh, thirty-five, is a citizen and native of India, and his
primary language is Hindi.1 He arrived in the U.S. on a visi-
tor’s visa on May 22, 1998. On June 25, 1998 (approximately
two weeks after his visa expired), through counsel, Singh
filed an affirmative application for asylum and withholding of
removal.

On August 13, 2003, after a hearing, the IJ denied Singh’s
application for asylum and withholding of removal. The IJ
also granted Singh a voluntary departure period of sixty days,
meaning that if he did not appeal, he would have to depart the
United States by October 12th, 2003.2 Notably, in his oral
decision, the IJ told Singh:

[Y]ou don’t have to accept this decision as final.
You can appeal. If you appeal, then my decision
won’t be final . . . , and while your appeal is pend-
ing, the Government won’t require that you depart
1
The facts are drawn primarily from Singh’s affidavit, submitted to the
BIA with his motion to reopen. We accept such facts as true unless the
BIA finds them to be “ ‘inherently unbelievable.’ ” Ghahremani v. Gon-
zales, 498 F.3d 993, 999 (9th Cir. 2007) (quoting Maroufi v. INS, 772 F.2d
597, 600 (9th Cir. 1985)). The BIA made no such finding here.
2
The grant of voluntary departure is puzzling, given that Singh’s coun-
sel did not request voluntary departure and was, in fact, statutorily ineligi-
ble to receive it. “An immigration judge may grant voluntary departure at
the conclusion of the removal proceedings . . . if he or she finds,” among
other requirements, that the alien “has been physically present in the
United States for a period of at least one year preceding the date the
Notice to Appear was served.” 8 C.F.R. § 1240.26(c)(1)(i). Singh entered
the United States on May 22, 1998. He was served with a Notice to
Appear on August 5, 1998. Singh had not accrued the requisite period of
physical presence— and both the government and the IJ were on notice
of this fact, as it was recognized by an IJ in an earlier hearing.
9682 SINGH v. HOLDER
the United States but they will see what happens
with the appeal . . . . I did grant you voluntary depar-
ture, so you have to post a $500 bond by . . . August
20th, and then you are required to depart the country
by October 12th. However, if you put in your appeal,
that date will probably change. Talk to your lawyer
about that. She will be able to tell you what happens
with your voluntary departure date.

(emphasis added).

Singh retained Satwant Pandher to appeal the IJ’s decision.3
Singh paid Pandher $1,500 in cash, and Pandher timely filed
a notice of appeal with the BIA on September 2, 2003. On
May 17, 2004, while his appeal was pending, Singh married
a naturalized U.S. citizen. Shortly after his marriage, Singh
asked Pandher to file a visa petition and an application for
adjustment of status. Singh paid Pandher an additional $1,500
for these services. In September 2004, after two erroneous fil-
ings, Pandher filed a Form I-130, petition for an immediate
relative visa, on Singh’s behalf. Singh regularly contacted
Pandher to ensure that his visa petition was being handled
appropriately.

On February 1, 2005, the BIA denied Singh’s appeal and
granted him a thirty-day period of voluntary departure. At the
time, the BIA did not mail copies of its decisions to alien peti-
tioners. Only the alien’s counsel received notice. See Matter
of Compean, 24 I. & N. Dec. 710, 739 n.13 (A.G. 2009)
(directing the Executive Office for Immigration Review “to
begin sending courtesy copies of final Board decisions to the
aliens themselves in addition to sending them to the aliens’
lawyers”), vacated by Matter of Compean, 25 I. & N. Dec. 1
(A.G. 2009). Singh first learned of the Board’s decision in
early February 2005, when he called Pandher to inquire about
3
Pandher was disbarred in February 2007 for failing to diligently and
competently represent his clients.
 SINGH v. HOLDER 9683
the status of his visa petition. Pandher then told Singh to come
into his office to “sign some papers for an appeal of the
Board’s decision.” Singh did so, and paid Pandher an addi-
tional $700 to appeal the Board’s decision. Because Singh is
unable to read English, he asked Pandher to explain the deci-
sion to him. Pandher told Singh “not to worry, and that he
received documents like this frequently.” Pandher did not tell
Singh anything about voluntary departure. On February 22,
2005, Pandher filed a petition for review with the Ninth Cir-
cuit. The petition for review did not request a stay of volun-
tary departure, nor a stay of removal.

Singh’s voluntary departure period expired on March 2,
2005, and Singh did not depart. An alien who is permitted to
depart voluntarily, but “voluntarily fails to depart the United
States within the time period specified” is subject to civil
fines, and, more importantly, is “ineligible, for a period of ten
years” for relief including cancellation of removal and adjust-
ment of status. 8 U.S.C. § 1229c(d) (emphasis added) (incor-
porating by reference the relief discussed in 8 U.S.C.
§§ 1229b (cancellation of removal and adjustment of status),
1255 (adjustment of status)).

On April 22, 2005, Singh and his wife attended a marriage
fraud interview with United States Citizenship and Immigra-
tion Services. Pandher also attended. The immigration officer
determined that Singh’s marriage was bona-fide, and
approved his application for an I-130 visa. Pandher then
informed Singh that he would “send some paperwork regard-
ing [the] asylum case,” but instructed that Singh “not call him
‘unnecessarily.’ ” Unbeknownst to Singh, on July 15, 2005,
Pandher filed with the Ninth Circuit a “motion to remand” the
case to the BIA. The motion was utterly worthless. Even set-
ting aside any possible statutory ineligibility for adjustment
on account of Singh’s failure to depart within the designated
period, the motion was filed before the wrong court,4 and was
4
Any motion to remand filed after the BIA has rendered a final decision
will be deemed a motion to reopen. Guzman v. I.N.S., 318 F.3d 911, 913
(9th Cir. 2003). A motion to reopen must be filed with the BIA. 8 C.F.R.
§ 1003.2.
9684 SINGH v. HOLDER
untimely.5 Not surprisingly, the Ninth Circuit denied the
motion. The Ninth Circuit eventually denied Singh’s petition
for review of the denial of asylum. Singh v. Gonzales, 225 F.
App’x. 632 (9th Cir. 2007).

Pandher then filed a “motion to remand” with the BIA in
light of Singh’s marriage and approved visa petition. Again,
the motion was worthless. Pandher failed to include the
required filing fee. See 8 C.F.R. § 1003.2(g)(2)(i). Moreover,
the motion was untimely, and Pandher failed to make any
argument that the time period for filing the motion to reopen
should have been equitably tolled. See 8 U.S.C.
§ 1229a(c)(7)(C)(i).

Dissatisfied with Pandher’s representation, Singh and his
wife consulted another attorney who referred Singh to his cur-
rent counsel. Counsel requested and reviewed Singh’s file,
and informed Singh that Pandher had rendered ineffective
assistance. Singh lodged a complaint against Pandher with the
Washington State Bar, and informed him of the grievance. On
October 23, 2006, counsel entered a notice of appearance with
the BIA and filed a motion to reopen to apply for adjustment
of status.

The motion to reopen alleged that Singh was “severely
prejudiced by his former counsel’s failure to: 1) seek a stay
of voluntary departure in order to preserve Mr. Singh’s eligi-
bility for adjustment of status, and 2) move to reopen Mr.
Singh’s proceedings once his I-130 petition was approved.”
Further, the motion to reopen argued that the time period for
filing a motion to reopen should be equitably tolled on
account of ineffective assistance of counsel.
5
A motion to reopen must be filed within ninety days of the entry of the
final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). To have been timely,
Singh’s motion to reopen should have been filed by May 2, 2005.
 SINGH v. HOLDER 9685
II.

[1] An alien has the statutory right to file one motion to
reopen. 8 U.S.C. § 1229a(c)(7)(A); Nevarez Nevarez v.
Holder, 572 F.3d 605, 608 (9th Cir. 2009). To be considered
timely, a motion to reopen must be filed within ninety days
of the entry of the final order of removal, unless equitable
tolling applies. Iturribarria v. I.N.S., 321 F.3d 889, 897 (9th
Cir. 2003). Ineffective assistance of counsel is one basis for
equitable tolling. To qualify for equitable tolling on account
of ineffective assistance of counsel, a petitioner must demon-
strate (a) that he was prevented from timely filing his motion
due to prior counsel’s ineffectiveness; (b) that he demon-
strated due diligence in discovering counsel’s fraud or error;
and (c) that he complied with the procedural requirements of
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1997); Ray v.
Gonzales, 439 F.3d 582, 587 (9th Cir. 2006).

If an alien qualifies for equitable tolling of the time and/or
numerical limitations on a motion to reopen, the motion is
treated as if it were the one the alien is statutorily entitled to
file.6 See, e.g., Iturribarria, 321 F.3d at 899-903; Rodriguez-
Lariz v. I.N.S., 282 F.3d 1218, 1226 (9th Cir. 2002). When
considering the merits of a motion to reopen premised on
ineffective assistance of counsel, the BIA asks whether coun-
sel’s performance was deficient, and whether the alien suf-
fered prejudice. Rodriguez-Lariz, 282 F.3d at 1226. Though
counsel’s ineffectiveness factors into the analysis of equitable
6
In addition, the BIA may reopen proceedings on its own authority at
any time. 8 C.F.R. § 1003.2. We are without jurisdiction to review the
BIA’s decision to reopen sua sponte. Mejia-Hernandez, 633 F.3d 818, 823
(9th Cir. 2011); Ekimian v. I.N.S., 303 F.3d 1153, 1156-57 (9th Cir. 2002).
This case, however, does not involve the Board’s power to reopen sua
sponte, as Singh argued that the time and numerical limitations on his
motion to reopen should have been equitably tolled on account of ineffec-
tive assistance of counsel, and the BIA decided that there was no ineffec-
tive assistance.
9686 SINGH v. HOLDER
tolling and the merits of a motion to reopen, the issues should
be considered separately. Id.

We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) and
review the BIA’s denial of a motion to reopen for abuse of
discretion. See De Martinez v. Ashcroft, 374 F.3d 759, 761
(9th Cir. 2004); Socop-Gonzalez v. I.N.S., 272 F.3d 1176,
1187 (9th Cir. 2001) (en banc). The BIA abuses its discretion
when its decision is “arbitrary, irrational, or contrary to law.”
Ontiveros-Lopez v. I.N.S., 213 F.3d 1121, 1124 (9th Cir.
2000) (internal quotation marks omitted). Here, the BIA con-
cluded that there was no ineffective assistance of counsel, and
denied the petition as untimely and on the merits.7

III.

[2] The BIA abused its discretion when it concluded that
Pandher performed effectively. “ ‘Ineffective assistance of
counsel in a deportation proceeding is a denial of due process
under the Fifth Amendment if the proceeding was so funda-
mentally unfair that the alien was prevented from reasonably
presenting his case.’ ” Ray, 439 F.3d at 587 (quoting Lopez v.
I.N.S., 775 F.3d 1015, 1017 (9th Cir. 1985)). Pandher pre-
vented Singh from reopening his case to apply for adjustment
of status. At any time after Singh’s marriage, Pandher could
have filed a motion to remand the case to the IJ and then peti-
tioned the IJ for a continuance of removal proceedings pend-
ing the adjudication of the visa petition. See Avagyan v.
Holder, ___ F.3d ___, No. 06-73892, 2011 WL 2586275, at
7
We reject the Government’s argument that Singh has waived any chal-
lenge to the denial of equitable tolling. Counsel’s opening brief seeks
review of the determination that counsel performed adequately, and cites
multiple cases involving equitable tolling on account of ineffective assis-
tance of counsel. It sufficiently raises the issue of equitable tolling for
review. See Fed. R. App. P. 28(a)(9)(A); Rattlesnake Coalition v. E.P.A.,
509 F. 3d 1095, 1100 (9th Cir. 2007) (holding that appellant who chal-
lenged both of the lower court’s holdings in the body of the brief has not
waived the arguments).
 SINGH v. HOLDER 9687
*9 n.3 (9th Cir. July 1, 2011) (explaining the process for
reopening a case when an alien in removal proceedings has
applied for an immediate relative visa).8 Furthermore, Pand-
her could have filed a motion to reopen after the BIA denied
Singh’s appeal but before the expiration of the period of vol-
untary departure. It was possible, even likely, that the motion
would have been granted. See In Re Velarde-Pacheco, 23 I.
& N. Dec. 253, 255-57 (BIA 2002). Filing the motion would
have automatically tolled the voluntary departure period
under then-existing Ninth Circuit law. See Azarte v. Ashcroft,
394 F.3d 1278, 1289 (9th Cir. 2005), abrogated by Dada v.
Mukasey, 554 U.S. 1, 19-21 (2008) (rejecting the position that
a motion to reopen automatically tolls the voluntary departure
period, but holding that an alien who wishes to file a motion
to reopen must be permitted to withdraw his request for vol-
untary departure).

[3] Even if we excused Pandher’s apparent desire to wait
until Singh’s I-130 visa petition was approved before filing a
motion to reopen, it is clear Pandher failed to ensure that his
client remained eligible for adjustment of status while the visa
application was pending. Pandher should have recognized that
failure to comply with a voluntary departure order potentially
renders an alien ineligible for adjustment of status, and could
have ensured that those penalties did not attach. For example,
Pandher could have applied for a stay of voluntary departure
pending circuit review of the BIA’s denial of Singh’s appeal;
the stay probably would have been granted. See El Himri v.
8
Contrary to the Government’s assertion, Singh has adequately
exhausted his administrative remedies with respect to the claim that Pand-
her was ineffective because he failed to file a motion to reopen or a motion
to remand to the immigration court while the I-130 was pending. Singh’s
motion argued that he should be permitted to reopen because his counsel
failed to preserve his eligibility to apply for adjustment of status, and the
BIA conducted a full review of the record. Even if Singh did not raise a
particular form of ineffective assistance, he has sufficiently exhausted the
claim. Ladha v. I.N.S., 215 F.3d 889, 903 (9th Cir. 2000), overruled on
other grounds by Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009).
9688 SINGH v. HOLDER
Ashcroft, 344 F.3d 1261, 1262-63 (9th Cir. 2002) (holding
that the courts can grant a stay of voluntary departure where
there is “a probability of success on the merits and the possi-
bility of irreparable injury”) (quoting Abbassi v. INS, 143 F.3d
513, 514 (9th Cir. 1998)), abrogated by regulation as recog-
nized in Garfias-Rodriguez v. Holder, ___ F.3d ___, No, 09-
72603, 2011 WL 1346960, at *8 (9th Cir. Apr. 11, 2011).9
Pandher also could have applied for a stay of removal at the
time he filed the petition for review with the Ninth Circuit; at
the time, the motion for a stay of removal would have been
construed as encompassing a motion to stay voluntary depar-
ture. Desta v. Ashcroft, 365 F.3d 741, 748-49 (9th Cir. 2004).
Had Pandher applied for a stay of removal or a stay of volun-
tary departure pending Ninth Circuit review of Singh’s asy-
lum claim, and had the motion been granted, the voluntary
departure period would not have started to run until 2007,
long after Singh’s visa application was approved.

[4] The BIA excused counsel’s failings because it believed
Pandher made a “tactical” decision to file a motion to remand
with the Ninth Circuit instead of filing for a stay of voluntary
departure (or pursuing any of the other avenues of relief). The
motion to remand was worthless: the Ninth Circuit has no
authority to grant such a motion. It is nigh impossible to
imagine how a competent attorney would make a conscious
decision to pursue a course leading to certain failure, when
faced with several paths to success. Pandher’s repeated mis-
takes, compounded by his inability to recognize the import of
his errors, are the epitome of ineffective assistance. Pandher
had four opportunities to ensure that his client remained eligi-
ble to apply for an adjustment of status — the very form of
relief he was paid to help his client obtain — and he failed to
9
Under the current regulations, filing either a petition for review or a
motion to reopen automatically terminates voluntary departure. 8 C.F.R.
§§ 1240.26(b)(3)(iii), 1240.26(i). The regulations apply to petitioners who
were granted voluntary departure on or after January 20, 2009, so do not
affect this case. 73 FR 76, 927, 76939 (Dec. 18, 2008).
 SINGH v. HOLDER 9689
take advantage of any of them. We do not require counsel’s
performance to be “brilliant,” but we cannot sanction repre-
sentation that prevents an alien from even filing necessary
motions and applications. Lin v. Ashcroft, 377 F.3d 1014,
1027 (9th Cir. 2004).

IV.

[5] The BIA also denied Singh’s motion to reopen because
it concluded that he had not been prejudiced by counsel’s fail-
ures. Counsel’s deficiencies are prejudicial if they could have
affected the outcome of the proceedings. See Mohammed v.
Gonzales, 400 F.3d 785, 793 (9th Cir. 2005); Iturribarria,
321 F.3d at 899-90. “The failure to file a necessary document
creates a presumption of prejudice[,]” rebutted only when the
alien lacks plausible grounds for relief. Hernandez-Mendoza
v. Gonzales, 537 F.3d 976, 979 (9th Cir. 2007). We must
“consider the underlying merits of the case to come to a tenta-
tive conclusion as to whether petitioner’s claim, if properly
presented, would be viable.” Nehad v. Mukasey, 535 F.3d
962, 971 (9th Cir. 2008) (alteration and citation omitted).
Pandher failed to preserve his client’s eligibility to apply for
adjustment of status and failed to timely file the motion to
reopen that was a prerequisite for applying for adjustment of
status. These failures create a presumption of prejudice.

[6] The BIA concluded that Singh suffered no prejudice
because he “voluntarily” failed to depart within the required
period and is therefore statutorily ineligible for an adjustment
of status. Nevertheless, two months after the BIA decided
Singh’s case, it held that an alien who is not aware of an order
of voluntary departure does not fail to depart “voluntarily”
and is not subject to the statutory penalties. In re Zmijewska,
24 I. & N. Dec. 87, 94 (BIA 2007). Under Zmijewska, Singh
has a strong argument that he is not subject to the penalties
for failing to comply with a voluntary departure order.

In Zmijewska, the BIA construed the phrase “voluntarily
fails to depart” as a narrow exception to the penalties for fail-
9690 SINGH v. HOLDER
ure to comply with an order of voluntary departure. 24 I. &
N. Dec. at 93. Zmijewska’s Board-accredited representative
failed to notify her of the Board’s decision until after the
period granted for voluntary departure had passed. Id. at 88.
The BIA first rejected the idea that either it or the courts could
“apply[ ] an open-ended equitable exception to the penalties
for failing to depart within the time for voluntary departure.”
Id. at 93. Nevertheless, the BIA recognized that “an alien
[who], through no fault of his or her own, is unaware of the
voluntary departure order or is physically unable to depart” is
not subject to the penalties for voluntarily failing to depart. Id.
at 94. The BIA emphasized that “the ‘voluntariness’ excep-
tion is not a substitute for the repealed ‘exceptional circum-
stances’ exception” but a “much narrower” one. Id. In light of
counsel’s failure to notify petitioner of the BIA’s order of vol-
untary departure, the Board held that respondent did not “vol-
untarily” fail to depart. Id.

[7] It appears Singh’s failure to depart, like that in Zmi-
jewska, was not “voluntary,” so he remains eligible for an
adjustment of status.10 In that event, he was clearly prejudiced
by Pandher’s failure to file a motion to remand or motion to
reopen after his marriage to a United States citizen. Given that
the BIA did not have the opportunity to apply Zmijewska to
the facts of Singh’s case, we believe that remand is appropri-
ate. I.N.S. v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam).
We note the following facts which may be relevant to Zmi-
jewska’s applicability. First, Singh was not statutorily eligible
for voluntary departure, and the IJ and BIA granted voluntary
departure in error. Second, the IJ specifically instructed Singh
to talk to his lawyer about the voluntary departure period in
10
Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1015-16 (9th Cir.
2008) does not control. There, petitioner was fully aware of the voluntary
departure order but remained in the United States in reliance on counsel’s
erroneous advice. In this case, Singh did not receive a copy of the BIA’s
decision and order of voluntary departure, and has alleged that his counsel
did not tell him about the order of voluntary departure in response to his
query about the contents of the BIA’s decision.
 SINGH v. HOLDER 9691
the event that he filed an appeal. Third, Singh did not receive
a personal copy of the Board’s denial of his appeal and order
of voluntary departure. Fourth, when Singh asked his lawyer
to explain the contents of the order, Panhder told Singh “not
to worry and that he received documents like this frequently.”
Fifth, Singh alleged that Pandher did not tell him anything
about an order of voluntary departure.

V.

[8] The BIA’s denial of Singh’s motion to reopen because
counsel did not render ineffective assistance was an abuse of
discretion. In addition, if Singh’s failure to depart was not
“voluntary” under Zmijewska, he remains eligible for adjust-
ment of status and counsel’s failures prejudiced him. Accord-
ingly, we GRANT the petition for review and REMAND to
the BIA for further proceedings consistent with this opinion.