Huiyan Chen v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2018
• Docket: 16-72427
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HUIYAN CHEN, No. 16-72427

Petitioner, Agency No. A205-190-818

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 11, 2018**

Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.

Huiyan Chen, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration

judge’s (“IJ”) order denying her motion to reopen. We have jurisdiction under 8

U.S.C. § 1252. We review de novo questions of law. Mohammed v. Gonzales, 400

F.3d 785, 791-92 (9th Cir. 2005). We grant the petition for review and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The BIA erred in determining that Chen did not establish prejudice resulting

from her former counsel’s failure to timely file a notice of appeal. See Ray v.

Gonzales, 439 F.3d 582, 587 (9th Cir. 2006) (applying a presumption of prejudice

where petitioner’s counsel failed to file an appeal). Although the BIA properly

concluded that Chen is entitled to a rebuttable presumption of prejudice, the BIA

reasoned that the presumption was rebutted, and Chen therefore did not show

prejudice, because she failed to allege that the outcome of her case might have

been different had counsel timely filed a notice of appeal. But Chen only needed to

demonstrate plausible grounds for asylum and related relief in order to show

prejudice. See id. at 589 (presumption of prejudice was not rebutted because

petitioner’s personal account of persecution at the hands of government officials

showed plausible grounds for asylum, despite IJ’s adverse credibility

determination); Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir. 2004)

(presumption of prejudice is not rebutted if a petitioner is able to show plausible

grounds for relief).

Accordingly, we grant the petition for review and remand for the BIA to

determine whether Chen demonstrated plausible grounds for relief.

PETITION FOR REVIEW GRANTED; REMANDED.

2 16-72427