Singh v. Gonzales

MEMORANDUM ** Gurdip and Kamlesh Singh, husband and wife and natives and citizens of India, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen proceedings based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review the denial of a motion to reopen for abuse of discretion, and review claims of due process violations de novo. See Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We grant the petition for review and remand. The BIA properly concluded that Petitioners are entitled to a rebuttable pre *2 sumption of prejudice because their former attorney failed to file a brief on appeal. See Amarjit Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir.2004) (where BIA summarily dismissed appeal for failure to file a brief, petitioner was deprived of meaningful appellate review, and was entitled to a rebuttable presumption of prejudice). However, we disagree with the BIA’s conclusion that the presumption is rebutted in this case. See id. (presumption is not rebutted if alien is able to show plausible grounds for relief from removal). Although the BIA recited the correct prejudice standard in its decision, that Petitioners demonstrate plausible grounds for relief, the BIA went on to apply a more stringent standard, that Petitioners demonstrate they will ultimately prevail on their claims. See Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004) (per curiam) (BIA abuses its discretion where it requires petitioner to demonstrate that they would win or lose when assessing prejudice on an ineffective assistance of counsel claim). Petitioners need only demonstrate that their claims for asylum, withholding of removal and relief under the Convention Against Torture are plausible in order to demonstrate prejudice. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004). We therefore remand to the Board to assess under the correct standard whether the presumption of prejudice is rebutted in this case. PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.