Singh v. Ashcroft

• Decision Date: 18 May 2004
• Docket Number: No. 02-72759.,02-72759.
• Citation: 367 F.3d 1182
• Parties: Amarjit SINGH, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

367 F.3d 1182

Amarjit SINGH, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-72759.

United States Court of Appeals, Ninth Circuit.

Submitted November 7, 2003.^*

Filed May 18, 2004.

Ashwani K. Bhakhri, Burlingame, CA, for the petitioner.

Mary Jane Candaux and Thankful Vandestar, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A76-728-212.

Before: CANBY, W. FLETCHER, and TALLMAN, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

Amarjit Singh petitions for review of an order of the Board of Immigration Appeals ("BIA") denying his motion to reopen his removal proceedings. Recharacterizing it as a "motion to reconsider," the BIA denied Singh's motion. We grant the petition for review because we hold that the BIA abused its discretion in denying Singh's motion to reopen.

I. Background

Singh is a Sikh and a native and citizen of India. In September 1998, Singh testified before an immigration judge ("IJ") that he had been arrested in India three times in 1994 and 1995 for suspected involvement with Sikh separatists. According to his testimony, Singh was interrogated and beaten repeatedly during each of these detentions. The IJ denied Singh asylum, finding that he had not established persecution based on a statutory ground for relief.

Singh and his then-attorney Jagdip Singh Sekhon agreed that Singh would appeal the IJ's decision to the BIA, and Singh paid Sekhon for his promised services. On September 25, 1998, Sekhon timely filed a Notice of Appeal to the BIA and, by marking a box on Form EOIR-26, indicated that he would file a separate brief. During the months following, Singh contacted Sekhon's office several times to check on the status of his appeal. He was repeatedly assured that the appeals process was lengthy and that he should be patient. In fact, however, Sekhon did not attempt to file a brief until nearly twenty months after the filing deadline. The BIA returned the brief to Sekhon and advised him that he could resubmit it with a motion for consideration of a late-filed brief. Sekhon did not seek to resubmit the brief and did not advise Singh of the BIA's communication.

On March 18, 2002, in a one-person order, the BIA summarily dismissed Singh's appeal. Except for the second-to-last sentence of the following paragraph, the BIA's discussion was devoted to Singh's failure to file a brief. The BIA wrote:

The appeal is dismissed. The appellant checked Box 6 on the Notice of Appeal (Form EOIR-26) indicating that a separate written brief or statement would be filed in addition to the reasons for appeal accompanying the Notice of Appeal. Block 6 is immediately followed by a clear warning that the appeal may be subject to summary dismissal if the appellant indicates that such a brief or statement will be filed and, "within the time set for filing, you fail to file the brief or statement and do not reasonably explain such failure." The appellant was granted the opportunity to submit a brief or statement in support of the appeal. However, the record indicates that appellant did "not file such brief or statement, or reasonably explain his or her failure to do so, within the time set for filing." 8 C.F.R. § 3.1(d)(2)(i)(D). Moreover, upon review of the record, we are not persuaded that the Immigration Judge's ultimate resolution of this case was in error. Accordingly, we find that summary dismissal is appropriate pursuant to the provisions of 8 C.F.R. § 3.1(d)(2)(i)(D).

(Emphasis added.)

In late April 2002, using the BIA's automated telephone system with the help of a friend, Singh learned that his appeal had been summarily dismissed. On June 18, 2002, represented by new counsel, Singh filed a thirteen-page "Motion to Reopen and to Stay Deportation," asserting that his former counsel had been ineffective. In the motion, Singh outlined the steps he had taken to comply with Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988).¹ At the end of the motion, Singh "respectfully move [d] that his appeal ... be reopened and he be allowed to file a brief as per the original Notice of Appeal."

In a one-person order, the BIA denied Singh's motion to reopen, recharacterizing it as a motion to reconsider. It denied the motion on two grounds. First, it refused to grant equitable tolling and denied the motion as untimely. Second, it held that, in any event, Singh had failed to show prejudice resulting from the ineffective assistance of his former counsel.

We have jurisdiction to review the BIA's denial of a motion to reopen under 8 U.S.C. § 1252(b). See Reyes v. Ashcroft, 358 F.3d 592, 594 (9th Cir.2004). "This court reviews BIA denials of motions to reopen for abuse of discretion, but reviews purely legal questions, such as due process claims, de novo." Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003) (internal citations omitted). For the reasons that follow, we hold that the BIA abused its discretion in denying Singh's motion to reopen.

II. Discussion

A. Recharacterization of Singh's Motion

We have recently held that "[w]here the facts surrounding allegedly ineffective representation by counsel were unavailable to the petitioner at an earlier stage of the administrative process, motions before the BIA based on claims of ineffective assistance of counsel are properly deemed motions to reopen." Iturribarria, 321 F.3d at 891. Singh's motion to reopen fits squarely within our holding in Iturribarria. In his motion, Singh represented that he had not learned that his appeal had been summarily dismissed by the BIA until he called the automated telephone system in April 2002. Only after that telephone call did Singh learn that Sekhon, his former counsel, had failed to file a timely brief in support of the appeal; that Sekhon had failed to make a motion to the BIA to consider a late-filed brief; and that Sekhon had failed to communicate any of this information to Singh. In his motion, Singh thus presented to the BIA a claim for ineffective assistance of counsel supported by factual representations that had been "unavailable to [him] at an earlier stage of the administrative process." Id. Under Iturribarria, the BIA thus erred as a matter of law when it recharacterized Singh's motion to reopen as a motion for reconsideration.

B. Equitable Tolling

When properly characterized as a motion to reopen, Singh's motion was filed one day late. See 8 C.F.R. § 3.2(c)(2) (2002) (motion to reopen must be filed within 90 days).² If it had been a motion to reconsider, the motion would have been 61 days late. See id. § 3.2(b)(2). We held in Iturribarria that the BIA should have tolled the 90-day filing period for a petitioner seeking to reopen on the basis of ineffective assistance of counsel. There we "recognize[d] equitable tolling of deadlines ... during periods when a petitioner is prevented from filing because of deception fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error." 321 F.3d at 897; see also Fajardo v. INS, 300 F.3d 1018, 1022 (9th Cir.2002). In this case, Singh alleges that he was deceived by his former attorney. As soon as Singh learned that his appeal had been denied, he acted with due diligence in learning of Sekhon's deceit, in retaining new counsel, and in complying with the Lozada requirements. If the BIA had allowed equitable tolling of the deadline during this period, Singh's motion to reopen would have been filed well within the filing period. We hold that the BIA abused its discretion in refusing to toll the filing deadline, and that Singh's motion to reopen was therefore timely filed.

C. Prejudice

There is no Sixth Amendment right to counsel in a deportation proceeding, but Fifth Amendment due process guarantees still must be afforded to an alien-petitioner. See Iturribarria, 321 F.3d at 899. "To show a deprivation of due process caused by ineffective assistance of counsel, the alien must show that counsel's ineffective performance prejudiced h[im]." Id. Stated otherwise, to succeed on a claim of ineffective assistance of counsel, an alien must show both error and prejudice. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000).

The BIA denied Singh's motion to reopen on July 29, 2002. In denying the motion (erroneously recharacterized as a motion to reconsider), the BIA wrote:

As noted, the purpose of a motion to reconsider is to demonstrate that the Board has erred. Matter of Cerna, [20 I. & N. Dec. 399, 1991 WL 353528 (BIA 1991)]. In our March 18, 2002, decision, in addition to noting that the respondent had failed to file a brief to support his claims, we stated that "... upon review of the record, we are not persuaded that the Immigration Judge's ultimate resolution of this case was in error." The respondent in his motion presents nothing to show how we erred in making this determination. Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (party claiming ineffective assistance of counsel must show prejudice). The respondent does not present the brief that he claims would have caused us to reverse the Immigration Judge's determination, but instead promises to file such a brief only if the Board issues a new briefing schedule.

The BIA thus based its denial of Singh's motion on its finding, pursuant to our holding in Lata, that Singh had not "show[n] prejudice" resulting from his claim of "ineffective assistance of counsel."

1. Reasons Given by the BIA for Not Finding Prejudice

The BIA gave two reasons to support its holding that Singh had failed to show prejudice. First, the BIA noted that in its summary dismissal of Singh's appeal on March 18, 2002, it had stated that "upon review of the record" it had not been "persuaded" that the IJ's "ultimate resolution of this case was in error." Singh, the BIA continued, "presents nothing to show how we erred in making this determination," and thus had failed...