Grigoryan v. Keisler

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SVETLANA GRIGORYAN, 
Petitioner, No. 05-77020
v.
 Agency No.
A75-706-989
PETER D. KEISLER,* Acting
Attorney General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted May 16, 2007**

Filed November 19, 2007

Before: Harry Pregerson, Stephen Reinhardt, and
A. Wallace Tashima, Circuit Judges.

Per Curiam Opinion

*Peter D. Keisler is substituted for his predecessor, Alberto R. Gon-
zales, as Acting Attorney General of the United States, pursuant to Fed.
R. App. P. 43(c)(2).
**This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

15011
 GRIGORYAN v. KEISLER 15013

COUNSEL

Artem M. Sarian, Esq., Glendale, California, for the peti-
tioner.
15014 GRIGORYAN v. KEISLER
Peter D. Keisler, Esq., Linda S. Wernery, Esq., Daniel G.
Lonegran, Esq., Office of Immigration Litigation, Civil Divi-
sion, United States Department of Justice, Washington, D.C.,
for the respondent.

OPINION

PER CURIAM:

Svetlana Grigoryan, a native and citizen of Armenia, peti-
tions for review of the Board of Immigration Appeals’
(“BIA”) order denying her motion to reopen removal proceed-
ings on the ground of ineffective assistance of counsel. Grig-
oryan previously applied for asylum, which the agency denied
for failure to demonstrate a nexus to a protected ground, and
this court denied her petition for review. Represented by new
counsel, she moved to reopen. The BIA denied and Grigoryan
now petitions for review.

We have jurisdiction to review the BIA’s final order, 8
U.S.C. § 1252(a), and we review for abuse of discretion the
denial of a motion to reopen, Iturribarria v. INS, 321 F.3d
889, 894 (9th Cir. 2003). The BIA abuses its discretion when
it acts “arbitrarily, irrationally, or contrary to law.” Singh v.
INS, 213 F.3d 1050, 1052 (9th Cir. 2000). We review de novo
claims of due process violations arising from ineffective assis-
tance of counsel. Rodriguez-Lariz v. INS, 282 F.3d 1218,
1222 (9th Cir. 2002).

We deny in part and grant in part the petition for review,
and remand with instructions for the BIA to consider Grigory-
an’s contention that she was entitled to benefit from a pre-
sumption of prejudice and that she demonstrated plausible
grounds for relief when she submitted evidence that her fear
of persecution had an objective basis.
 GRIGORYAN v. KEISLER 15015
FACTS AND PROCEDURAL HISTORY

Grigoryan was born in Armenia of mixed ethnicity. Her
father was Armenian and her mother was Turkish. She
entered the United States in 1999 and applied for asylum. She
was represented by attorney Walter Burrier. The immigration
judge (“IJ”) assumed that Grigoryan was credible, but found
that she did not establish that she was persecuted on account
of a protected ground. Grigoryan claimed that she was perse-
cuted and that she had a well-founded fear on account of her
ethnicity.

In her asylum affidavit Grigoryan declared that she and her
parents were constantly harassed by Armenians because her
mother was Turkish. After her father’s death, she and her
mother and brother moved to Azerbaijan to live near her
mother’s relatives. In 1988, the war erupted in Azerbaijan
and, because she was Armenian, she was harassed, beaten,
and jailed. She and her husband and children fled to Russia.
In 1992, they returned to Armenia and struggled to survive
because of the hostility Armenians held against them because
they were from Azerbaijan.

In 1994, Grigoryan became president of an Armenian aid
organization that assisted soldiers wounded in the war
between Armenia and Azerbaijan. Grigoryan testified that
there was personal animus between her and another woman
who wanted to be president of the organization, and that this
rival provoked others to attack her by telling them that she
was part Turkish and, therefore, did not properly care for the
wounded Armenian soldiers. She testified that, on January 15,
1995, the parents of some soldiers attacked and severely
injured her, and then attacked and killed her 13-year old son.
Grigoryan corroborated her testimony with medical records.

Grigoryan’s former attorney filed a boilerplate brief with
the BIA. Significant portions of the brief were irrelevant to
her case, such as a discussion of adverse credibility findings.
15016 GRIGORYAN v. KEISLER
The brief conceded that her testimony did not qualify her for
asylum, but asserted that the facts she set forth in her asylum
application did. However, the brief failed to state these facts
and merely incorporated by reference her asylum application.
The brief was almost devoid of specific references to Grigory-
an’s case.

The BIA summarily affirmed and, ostensibly pro se, Grig-
oryan petitioned this court for review. A previous screening
panel of this court concluded that substantial evidence sup-
ported the agency’s finding that Grigoryan did not establish
a nexus between the attack and a protected ground. See Grig-
oryan v. Ashcroft, 119 Fed. Appx. 163 (9th Cir. Jan. 12,
2005).

Almost two years after the BIA’s final decision, Grigoryan
filed a motion to reopen and remand on grounds of ineffective
assistance of counsel. Grigoryan argued that she learned of
the ineffective assistance on May 20, 2005, when she met
with new counsel, and that equitable tolling applied. She
argued before the IJ that her former attorney failed to elicit
relevant facts, failed to meet with her, failed to submit appro-
priate background information, failed to amend her affidavit,
failed to provide the IJ and opposing counsel with original
documents in a timely fashion, did not tell her to look for doc-
uments, and was late for a court appearance.

Grigoryan also argued that Burrier failed to file a meaning-
ful brief in support of her appeal to the BIA, and offered to
assist her to petition for review even though he was not admit-
ted to practice before this court. She stated that Burrier did not
advise her that he was ineligible to practice before the court
and had been sanctioned by it, and advised her to consult with
a disbarred attorney, Walter Wenko, who would write her
brief for her. Grigoryan attached several documents to the
motion, including but not limited to her affidavit attesting to
the claims regarding Burrier, and a finding by counsel for the
State of Connecticut that there was probable cause to find that
 GRIGORYAN v. KEISLER 15017
Burrier engaged in misconduct and/or unethical conduct in
Grigoryan’s case.

Grigoryan also attached a proposed brief to the BIA,
together with a motion to admit additional documents and to
remand, requesting the BIA to consider this brief in place of
the deficient brief submitted by Burrier. The new brief argued
there was in fact a nexus because the female rival, though
motivated herself by personal jealousy, spread a rumor so that
those who attacked Grigoryan and her son were motivated by
anti-Turkish and anti-Azeri animus. Grigoryan therefore
argued that she was eligible for asylum because she had
shown past persecution. She also argued that because she
established past persecution she was entitled to a presumption
of a well-founded fear and that attached evidence demon-
strated that her fear had an objective basis.

The new evidence did not relate to the 1995 attack, but pur-
ported to demonstrate that Grigoryan’s fear had an objective
basis because of antipathy and violence against people of
mixed Azeri or Turkish origin. The new evidence included a
United Nations report stating that Armenian-Azeri couples are
at risk of persecution in Armenia. Grigoryan also submitted
media reports about violent incidents and tension between
Armenians and Azeris and/or Turks.

The BIA denied reopening. It found that Grigoryan’s
motion complied with the procedural requirements of Matter
of Lozada, 19 I. & N. Dec. 637 (BIA 1988), but was untimely
because it was filed more than 90 days after the BIA’s sum-
mary affirmance. It declined to consider whether the deadline
should be equitably tolled, concluding instead that, “assuming
ineffective assistance of counsel, the respondent has not dem-
onstrated that she suffered prejudice as a result of her attor-
ney’s ineffectiveness.” The BIA noted that the IJ, the BIA,
and this court concluded that Grigoryan did not establish that
the 1995 attack was on account of a protected ground, and
determined that the evidence she submitted with her motion
15018 GRIGORYAN v. KEISLER
“does mention problems in Armenia for persons of Azeri eth-
nic background, but that general information does not address
the fact that the respondent has not shown that she was
attacked because of her Azeri ethnicity.”

Grigoryan timely petitioned for review. She contends that
the time limit for her motion to reopen was equitably tolled
as a result of ineffective assistance at the hearing, in her
agency appeal, and in her first petition for review, and that
she was prejudiced as a result. She further contends that she
was entitled to a presumption of prejudice because she was
effectively denied the opportunity to present her case. As
before the BIA, she does not contend that the evidence sub-
mitted with the motion demonstrates that the 1995 attack was
on account of a protected ground, but that there is animus and
violence in Armenia against people of mixed ethnicity and
that her fear of future persecution therefore has an objective
basis.

INEFFECTIVE ASSISTANCE OF COUNSEL

[1] A petitioner who raises an ineffective assistance of
counsel claim must satisfy several procedural requirements,
must demonstrate that counsel failed to perform with suffi-
cient competence, and must establish “that she was prejudiced
by counsel’s performance.” Mohammed v. Gonzales, 400 F.3d
785, 793 (9th Cir. 2005). In the context of an ineffective assis-
tance claim, “prejudice results when ‘the performance of
counsel was so inadequate that it may have affected the out-
come of the proceedings.’ ” Id. at 793-94, citing Ortiz v. INS,
179 F.3d 1148, 1153 (9th Cir. 1999); accord Maravilla
Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004) (per
curiam).1
1
This showing is different from that required in a motion to reopen on
grounds other than ineffective assistance, where the movant must show
prima facie eligibility for the underlying substantive relief requested. See,
e.g., INS v. Wang, 450 U.S. 139, 145 (1981) (per curiam). A prima facie
case is shown when the evidence reveals a reasonable likelihood that the
statutory requirements for the underlying substantive relief have been sat-
isfied. See Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003); see also
Maravilla Maravilla, 381 F.3d at 858.
 GRIGORYAN v. KEISLER 15019
[2] We have recognized limited exceptions to the general
requirement of a showing of prejudice. For instance, a show-
ing of prejudice is not required when a claim of ineffective
assistance of counsel is the basis for a motion to reopen pro-
ceedings in which the agency issued an in absentia removal
order. See, e.g., Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th
Cir. 2003).

[3] Also, when a petitioner is entirely deprived of an appel-
late procedure due to ineffective assistance of counsel, preju-
dice is presumed. See Dearinger ex rel. Volkova v. Reno, 232
F.3d 1042, 1045 (9th Cir. 2000). In Dearinger, counsel failed
to file a timely petition for review and we held that “where an
alien is prevented from filing an appeal in an immigration
proceeding due to counsel’s error, the error deprives the alien
of the appellate proceeding entirely.” Id. Finding that the peti-
tioner would have appealed but for the attorney’s error, we
held that prejudice could be presumed and affirmed the dis-
trict court’s order granting her habeas corpus petition and
directing the government to reissue the order of deportation so
that she had a new period within which to obtain review by
this court. See id. at 1043, 1046.

[4] In Ray v. Gonzales, 439 F.3d 582 (9th Cir. 2006), we
clarified the showing that a petitioner must make when the
presumption applies, holding that when prejudice is pre-
sumed, “we will find that a petitioner has been denied due
process if he can demonstrate plausible grounds for relief on
his underlying claim.” Id. at 587 (internal quotations and cita-
tions omitted). The government may rebut this presumption.
See id. at 589; see also Rojas-Garcia v. Ashcroft, 339 F.3d
814, 826 (9th Cir. 2003). In Ray, petitioner’s second attorney
failed to file a timely motion to reconsider or reopen and his
third attorney “provided no substantive legal assistance what-
soever[.]” Id. at 584, 588. These attorneys therefore “pre-
vented Ray . . . from presenting his case at all.” Id. at 588
(emphasis in original). Because Ray would have appealed but
for the errors of his attorneys, he was entitled to a presump-
15020 GRIGORYAN v. KEISLER
tion of prejudice, and the government did not rebut this pre-
sumption. See id. at 589.

Likewise, in Siong v. INS, 376 F.3d 1030 (9th Cir. 2004),
petitioner’s first attorney filed an untimely notice of appeal
and we presumed prejudice and required a showing of “plau-
sible grounds for relief.” Id. at 1038. In Rojas-Garcia, we pre-
sumed prejudice when counsel failed to file an appeal brief,
but found that the petitioner did not present plausible grounds
for relief and therefore denied the petition for review. See
Rojas-Garcia, 339 F.3d at 826, 828.

Here, Grigoryan’s new attorney moved to reopen on
grounds of ineffective assistance by former counsel, arguing
that she was denied meaningful review and was entitled to a
presumption of prejudice. We agree.

[5] The Grievance Counsel for the State of Connecticut
found “that there is probable cause that [Burrier] engaged in
misconduct and/or unethical conduct” in his representation of
Grigoryan before the agency and before this court. Burrier
filed a boilerplate brief before the BIA. Only a few lines were
specific to Grigoryan’s case. Several of its ten pages were
devoted to a discussion of adverse credibility findings, but in
this case the IJ did not make an adverse credibility finding.
The brief immediately conceded that Grigoryan’s testimony
did not qualify her for asylum: “The case is strange because
the appellant . . . testified to lots of heart rendering [sic] stuff
but nothing that would qualify for asylum.” Administrative
Record at 164. Instead, Burrier stated that Grigoryan’s asylum
application showed her eligibility for asylum. However, rather
than state these facts, the brief merely incorporated the appli-
cation by reference, leaving it to the BIA to ferret out the pur-
portedly critical information. Further, Grigoryan’s asylum
application was poorly drafted and prepared without the assis-
tance of counsel.

[6] Not only was Grigoryan prevented from reasonably pre-
senting her case, see Lin v. Ashcroft, 377 F.3d 1014, 1024-27
 GRIGORYAN v. KEISLER 15021
(9th Cir. 2004), but she was deprived of meaningful appellate
review, see Dearinger, 232 F.3d at 1045. As a result she was
entitled to a presumption of prejudice. See Ray, 439 F.3d at
586-89; Siong, 376 F.3d at 1038; Rojas-Garcia, 339 F.3d at
826; Dearinger, 232 F.3d at 1043.

[7] The BIA, however, abused its discretion because it
failed to presume prejudice and placed the burden entirely on
Grigoryan to demonstrate prejudice. See Maravilla Maravilla,
381 F.3d at 858 (remanding for the BIA to consider prejudice
under the correct standard).

PAST PERSECUTION

Although a petitioner claiming ineffective assistance may
enjoy a presumption of prejudice, she must nevertheless
“demonstrate plausible grounds for relief on [her] underlying
claim.” Ray, 439 F.3d at 587. Further, the presumption is
rebuttable. See id. at 589.

[8] Grigoryan argued in her motion to reopen that there was
a nexus to a protected ground in the 1995 attack because her
female rival incited ethnic hatred. The BIA rejected this argu-
ment and found that the additional evidence Grigoryan sub-
mitted did not support the argument. We agree. Our prior
disposition in this matter established that substantial evidence
supported the agency’s determination that Grigoryan had not
established a nexus. See Grigoryan, 119 Fed. Appx. 163. The
motion to reopen contained no evidence concerning the 1995
attack. The brief argued there was a nexus, but none of the
attached documents had any bearing on the 1995 attack. See
INS v. Wang, 450 U.S. 139, 141 (1981) (regulation requires
alien to support particular facts alleged in motion to reopen
“by affidavit or other evidentiary material”).

[9] Grigoryan therefore failed to demonstrate plausible
grounds for relief on her claim of past persecution arising
from the 1995 attack. See Rojas-Garcia, 339 F.3d at 826
15022 GRIGORYAN v. KEISLER
(denying relief because petitioner “cannot show that his . . .
arguments might have been successful on appeal to the
BIA.”). Her ineffective assistance claim fails on this ground
and it is not necessary to consider whether the government
successfully rebutted the presumption of prejudice.

WELL-FOUNDED FEAR OF PERSECUTION

[10] Grigoryan also argued in her motion to reopen that,
independent of her past persecution claim, she had a well-
founded fear of future persecution. She supported her well-
founded fear claim with evidence of antipathy and violent acts
between Armenians and Azeris and of persecution in Armenia
of people of Armenian-Azeri ethnicity. The BIA stated that
she showed that there were “problems in Armenia for persons
of Azeri ethnic background,” but it did not consider her fear
of future persecution claim. Rather, it construed the docu-
ments only as failing to demonstrate a nexus between the
1995 attack and a protected ground — even though Grigoryan
made no claim that the documents were submitted for that
purpose. The BIA did not apply this evidence to Grigoryan’s
well-founded fear claim and, under INS v. Ventura, 537 U.S.
12, 16-17 (2002) (per curiam), we are prohibited from doing
so in the first instance. It follows that we are unable to assess
whether Grigoryan demonstrated plausible grounds for relief
on this claim, and must remand. See Ray, 439 F.3d at 587;
Maravilla Maravilla, 381 F.3d at 858.

CONCLUSION

In sum, a petitioner who claims ineffective assistance of
counsel must satisfy the procedural requirements, must dem-
onstrate that counsel failed to perform with sufficient compe-
tence, and must establish that she was prejudiced by her
counsel’s inadequate performance by showing that it may
have affected the outcome of the proceeding. See, e.g.,
Mohammed, 400 F.3d at 793-94. When the petitioner has been
entirely deprived of meaningful review, she is entitled to a
 GRIGORYAN v. KEISLER 15023
presumption of prejudice. See, e.g., Dearinger, 232 F.3d at
1043, 1046. This presumption may arise from counsel’s fail-
ure to file a timely notice of appeal or petition for review, his
failure to file a brief to the BIA or this court, or his filing of
a boilerplate brief. See Ray, 439 F.3d at 586-89; Siong, 376
F.3d at 1038; Rojas-Garcia, 339 F.3d at 826; Dearinger, 232
F.3d at 1043, 1046. The presumption may be rebutted. See,
e.g., Rojas-Garcia, 339 F.3d at 826. In addition, petitioner
must demonstrate plausible grounds for relief on her underly-
ing claim. See, e.g., Ray, 439 F.3d at 587.

In the instant petition, the record demonstrates that former
counsel filed a boilerplate brief to the BIA that resulted in
Grigoryan not receiving meaningful review. The BIA abused
its discretion when it failed to presume prejudice and instead
required Grigoryan to demonstrate that she suffered prejudice.

As to Grigoryan’s past persecution claim, whether or not
prejudice is presumed, she failed to show plausible grounds
for relief. Despite the opportunity to file new evidence, she
made no showing that the 1995 attack was on account of a
protected ground. We therefore conclude that the BIA did not
abuse its discretion, and deny in part the petition for review.
However, as to Grigoryan’s fear of future persecution claim,
the BIA abused its discretion when it failed to consider the
claim, failed to presume prejudice, and failed to determine
whether she established plausible grounds for relief. We
therefore grant in part the petition for review and remand so
that the BIA may make this determination in the first instance.
See Ventura, 537 U.S. at 16-17.

PETITION FOR REVIEW DENIED in part;
GRANTED in part; REMANDED.