Singh Sra v. Ashcroft

113 F. App'x 279

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 18, 2004
• Docket: No. 03-72387, A77-810-947
• Status: Published

Opinion

MEMORANDUM

*

Manpreet Singh Sra petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of his motion to reopen because of ineffective assistance of counsel. As the parties are familiar with the facts, procedural history, and arguments, we will not recount them here.

Sra has demonstrated ineffective assistance of counsel. He complied with the Lozada requirements regarding his allegation that his previous attorney failed to file a brief on appeal to the BIA despite having been retained to do so. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) . Furthermore, “counsel’s failure to file a brief with the BIA, which resulted in summary dismissal, creates a presumption that [Sra] was prejudiced because his counsel’s mistake deprived him of a direct appeal to the BIA.” Id. at 825. This presumption cannot be rebutted if Sra demonstrates “that the BIA could plausibly have determined that he was [eligible for relief] based on the record before it.” Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir.2004) (alteration in original). Here, Sra has demonstrated that he has plausible grounds for relief: He has been detained and severely beaten by government officials on multiple occasions because of his association with s Sikh separatist. Therefore, the BIA abused its discretion in denying his motion to reopen. Id. at 1190.

While Singh, 367 F.3d at 1182, and Siong v. Ashcroft, 376 F.3d 1030 (9th Cir.2004), were decided after the BIA’s denial of Sra’s motion to reopen on May 27, 2003, these cases announced no new rule, but followed our earlier ineffective assistance of counsel cases. See, e.g., Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1046 (9th Cir.2000). Therefore, there is no need to remand to the BIA for further consideration of the motion to reopen. Instead, we grant the petition and remand to the BIA with directions to reopen Sra’s case, to allow him to file a new, full brief on the merits, and thereafter to decide his appeal on the merits.

PETITION GRANTED; MATTER REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.