Jaib Singh Ray v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIB SINGH RAY, 
Petitioner, No. 03-72501
v.
 Agency No.
A75-306-989
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 15, 2005—San Francisco, California
Opinion withdrawn February 23, 2006
Filed March 1, 2006
Before: Betty B. Fletcher, John R. Gibson,* and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Betty Binns Fletcher
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
2087
2090 RAY v. GONZALES
COUNSEL
Abbe M. Goncharsky, Lewis and Roca LLP, Tucson, Ari-
zona, for the petitioner.
Kristin Cabral, United States Department of Justice, Civil
Division, Office of Immigration Litigation, Washington, D.C.,
for the respondent.
OPINION
B. FLETCHER, Circuit Judge:
Jaib Singh Ray, a native and citizen of India, seeks asylum
in the United States. An immigration judge (IJ), however,
denied Ray’s application for asylum, and the Board of Immi-
gration Appeals (BIA) summarily affirmed the IJ’s decision
because Ray failed to file a brief on appeal. Ray submitted to
the BIA two motions to reopen his case, and the BIA denied
both of these motions on procedural grounds. Ray now peti-
tions for review of the BIA’s decision to deny his second
motion to reopen.
We have jurisdiction to review the final order of the BIA
under 8 U.S.C. § 1252. We grant Ray’s petition, and we
RAY v. GONZALES 2091
remand with instructions for the BIA to consider the merits of
his first motion to reopen.
I.
Ray entered the U.S. without inspection at Brownsville,
Texas, on January 17, 1997. Two months later, on March 17,
1997, Ray applied for asylum. In June of 1998, he appeared
with his attorney, Jang Im, from the Law Offices of Madan
Ahluwalia, for a hearing on the merits of his asylum applica-
tion. At his hearing, Ray testified in the Punjabi language
through an interpreter. He claimed that he had experienced
past persecution and feared future persecution at the hands of
the Indian government because of his participation in an orga-
nization called Akali Dal, a Sikh separatist group whose polit-
ical objective is the establishment of an independent state
called Khalistani. At the conclusion of the hearing, the IJ
found that Ray’s testimony was not credible and denied his
application for asylum and for restriction on removal. The IJ
ordered Ray removed to India.
Ray filed a timely notice of appeal with the BIA in which
he stated he would later file a brief in support of his appeal.
The notice of appeal did not indicate that Ray was represented
by an attorney and provided only Ray’s home address as con-
tact information. It did, however, contain a typewritten list of
the reasons for the appeal. The list was written in English,
reflecting at least some legal expertise and suggesting the pre-
parer’s familiarity with asylum law, though it did not include
a specific objection to the IJ’s adverse credibility determina-
tion.
Nearly one year later, the BIA sent a briefing schedule to
Ray’s home address. The BIA never received a brief in sup-
port of Ray’s appeal and, as a result, dismissed the appeal.
Although the BIA explicitly stated that it was summarily
affirming the IJ’s decision because of Ray’s procedural
default, the opinion also stated that, “upon review of the
2092 RAY v. GONZALES
record, we are not persuaded that the Immigration Judge’s
ultimate resolution of this case was in error.”
Ray subsequently retained another attorney, Anthony
Egbase, to help with the case. Though there is some dispute
about the exact date of retention, the record makes it apparent
that Ray arranged for Mr. Egbase’s representation only four
days after he learned that the BIA had dismissed his appeal,1
well in advance of both the thirty-day deadline to file a
motion for reconsideration (April 17, 2002) and the ninety-
day deadline to file a motion for reopening (June 17, 2002).
See 8 C.F.R. § 3.2(b)(2) (2002) (motion to reconsider); id.
§ 3.2(c)(2) (motion to reopen). Nonetheless, both deadlines
passed without any action by Mr. Egbase.
Then, on June 18, 2002 — one day after the deadline to file
a motion to reopen — Mr. Egbase filed a “Motion to Vacate
Order Dismissing Appeal and Motion Requesting Time to
File Brief in Support of Appeal.” The BIA initially rejected
the motion because Mr. Egbase failed to include the required
filing fee or request a waiver of the fee. Mr. Egbase resubmit-
ted the motion on June 25, 2002, along with the necessary fee.
In this first motion to reopen, Ray claimed that his first
attorney — Jang Im, from the Law Offices of Madan Ahluw-
alia — was responsible for failing to file the brief on appeal.
He stated that he had retained the Law Offices of Madan
Ahluwalia “to file an appeal on my behalf.” He declared that
1
In a formal declaration before the BIA, Mr. Egbase stated that he was
not retained by Ray until a later date, “on or about April 10, 2002.” Ray
claims that he retained Egbase on March 18, 2002. In support of his con-
tention, Ray submitted a copy of his retainer agreement with Egbase and
proof of payment to Mr. Egbase in the amount of $1500, both of which
were dated March 18, 2002. In addition, the record indicates that Mr.
Egbase signed, dated, and filed a Notice of Appearance on Ray’s behalf
on March 18, 2002. In light of these numerous supporting documents, we
are persuaded that Ray had retained Mr. Egbase as counsel within four
days of learning that the BIA had denied his appeal.
RAY v. GONZALES 2093
it would have been impossible for him to represent himself
before the BIA because he was not sufficiently proficient in
the English language. He stated that he was “shocked” when
he received the BIA’s notice that his appeal had been dis-
missed and that he immediately contacted Mr. Im’s office,
only to find that the firm had moved and had left no forward-
ing address. This first motion to reopen also contained a dec-
laration from Mr. Egbase stating that it took nearly two
months to track down Ray’s files from the erstwhile attorneys
at Madan Ahluwalia’s Law Offices.
On September 23, 2002, the BIA denied Ray’s first motion
to reopen on procedural grounds.2 The BIA’s opinion dis-
cussed both Ray’s failure to file his brief on appeal and his
failure to submit his motion to reopen in a timely fashion. The
decision concluded by noting that, “despite consulting with
counsel, the pending motion was filed late.”3 The BIA sent its
decision to Mr. Egbase on September 23, 2002.
2
The BIA’s ruling mentions the issue of ineffective assistance of coun-
sel, yet it does not adequately address that claim on the merits. The deci-
sion notes Ray’s claim that “prior counsel was incompetent because prior
counsel failed to file a brief with this Board,” but it then states that the
prior attorney’s incompetence provides “no basis for abrogating the
motions deadline here.” Likewise, the decision notes that Ray “blames an
attorney for not filing a brief,” but it denies the motion because Ray did
not “act[ ] with due diligence” in bringing his motion to reopen. Thus,
while the BIA’s decision mentions the ineffective assistance of counsel
claim, it does not adjudicate the claim; instead, it denies the motion to
reopen because of its untimeliness.
3
The BIA’s decision demonstrates considerable confusion about the
nature of Ray’s motion. Mr. Egbase had labeled the pleading as a “motion
to vacate.” The BIA decided to analyze the pleading as a motion to recon-
sider rather than a motion to reopen. The BIA mistakenly reasoned that
Ray’s ineffective assistance of counsel claim did not involve the introduc-
tion of new facts, and was thus “more properly characterized as a motion
to reconsider.”
This analysis was erroneous. The BIA’s treatment of the motion was
directly contrary to our holding in Ontiveros-Lopez v. INS, 213 F.3d 1121
(9th Cir. 2000). In Ontiveros-Lopez, we explained that a motion to the
2094 RAY v. GONZALES
More than four months after the BIA denied his first
motion, Ray obtained the help of an immigration consultant
and filed a second motion to reopen. In this pleading — filed
February 10, 2003 — Ray claimed that the BIA had abused
its discretion in denying his first motion to reopen because
Mr. Egbase had provided him with ineffective assistance of
counsel, and he renewed his contention that he had been
denied due process in his original appeal because of the inef-
fective assistance of Mr. Im, from the Law Offices of Madan
Ahluwalia. In support of his second motion to reopen, Ray
attached significant evidence of the ineffective assistance of
Mr. Egbase. This evidence included proof that Ray had
retained Mr. Egbase just four days after the summary dis-
missal of his direct appeal, that Mr. Egbase had taken no
action until after the deadlines for reopening and reconsidera-
tion had passed, and that Mr. Egbase had failed initially to
BIA raising an ineffective assistance of counsel claim is properly con-
strued as a motion to reopen. Id. at 1123. Despite this clear and binding
precedent, the BIA stated that our holding in Ontiveros-Lopez was “with-
out analysis” and proceeded to treat Ray’s pleading as a motion to recon-
sider anyway. We pause here only to refute the BIA’s assertion. The logic
of Ontiveros-Lopez is clear: a claim of ineffective assistance by its very
nature involves the introduction of new facts on appeal, which is why such
claims should be construed as a motion to reopen. See Iturribarria v. INS,
321 F.3d 889, 896 (9th Cir. 2003) (noting that “a motion to reopen is the
only avenue ordinarily available to pursue ineffective assistance of coun-
sel claims”). Cf. United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir.
1987) (explaining that the “customary procedure in this Circuit for chal-
lenging the effectiveness of defense counsel” is to go through a collateral
proceeding because “usually such a claim cannot be advanced without the
development of facts outside the original record” (quoting United States
v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (per curiam), cert.
denied, 470 U.S. 1058 (1985), and United States v. Birges, 723 F.2d 666,
670 (9th Cir.), cert. denied, 466 U.S. 943 (1984)).
Ultimately, however, the BIA’s erroneous analysis in this case was
immaterial. Because Ray’s motion was submitted more than ninety days
after the BIA dismissed his appeal, the BIA found that it was “untimely
filed” whether it was construed as a motion to reconsider or a motion to
reopen.
RAY v. GONZALES 2095
submit the first motion to reopen properly. Ray also demon-
strated that he had paid Mr. Egbase more than $5000 between
March and June of 2002 for untimely and inadequate assis-
tance.
Moreover, Ray’s second motion to reopen presented evi-
dence of the ineffective assistance of yet another attorney,
Martin Guajardo, whom Ray hired in August of 2002 (just
prior to the denial of his first motion to reopen). Ray submit-
ted evidence that he had hired Mr. Guajardo — who has been
disciplined by the California State Bar three times — and paid
him a total of $10,000 for legal assistance. According to Ray,
Mr. Guajardo provided no legal assistance at all. Finally, Ray
provided copies of complaints he filed with the California
State Bar against both Mr. Egbase and Mr. Guajardo.4 He
requested that the BIA reopen his case due to the “negligence
and inadequate representation [of] those attorneys.”
The BIA denied Ray’s second motion to reopen as
untimely and numerically barred. The BIA’s paragraph-long
decision stated: “The respondent argued again in the instant
motion that he should be granted a new hearing based upon
the negligence of his former attorney.” Yet the opinion did
not directly address Ray’s ineffective assistance of counsel
arguments. Further, the opinion did not distinguish between
4
Ray further alleged that both of these attorneys made promises to him
that they “knew judges” and implied to him that they would be able to
obtain a favorable outcome by exercising their influence with the immi-
gration judge. As to Mr. Egbase, Ray claimed that he had been assured by
Mr. Egbase that he “knew judges that would grant his motion.” As to Mr.
Guajardo, Ray claimed that the attorney had “stated that he knew judges
and could take care of this problem” but instead “has done nothing but
give me additional appointments and state that he will take care of it
through his high level contacts.” While these are only allegations made by
the petitioner, the BIA failed even to address them in its decision denying
Ray’s motion to reopen, lending further support to our conclusion that the
BIA abused its discretion in refusing to reopen the case. We express no
opinion on the truth of these allegations, nor do we rely on them for our
conclusions.
2096 RAY v. GONZALES
Ray’s underlying claim of ineffective assistance (involving
the failure of the Law Offices of Madan Ahluwalia to submit
a brief on direct appeal) and his subsequent and independent
claim of ineffective assistance (involving the failures of Mr.
Egbase and Mr. Guajardo to assist Ray in having the case
reopened). Without any recognition that Ray’s second motion
to reopen was different in substance from the first, the BIA
explained that its regulations did not permit multiple motions
to reopen and that Ray had failed to request timely reconsider-
ation of its decision to deny his first motion to reopen. The
BIA thus concluded that Ray had failed to comply with both
the numerical and temporal restrictions on motions to reopen,
and it denied his second motion.
Appearing pro se, Ray filed with the Ninth Circuit a timely
petition for review of his second motion to reopen. We review
the BIA’s decision for abuse of discretion. See Singh v. Ash-
croft, 367 F.3d 1182, 1185 (9th Cir. 2004).
II.
Because a deportation hearing is a civil proceeding involv-
ing non-citizens, aliens involved in such proceedings do not
enjoy the full panoply of constitutional rights that American
citizens would enjoy in a criminal proceeding. See INS v.
Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984) (describing
various constitutional protections unavailable in immigration
proceedings). For example, aliens involved in deportation
proceedings do not enjoy the Sixth Amendment’s guarantee
of an attorney’s assistance at the government’s expense. See
Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004).
[1] Yet aliens are not without representational rights. Fed-
eral law guarantees an alien the right to obtain counsel of his
own choice in “any removal proceedings before an immigra-
tion judge,” 8 U.S.C. § 1362, and we have explained that this
statutory provision stems from a constitutional guarantee of
due process, see Rios-Berrios v. INS, 776 F.2d 859, 862
RAY v. GONZALES 2097
(1985). See also Iturribarria v. INS, 321 F.3d 889, 899 (9th
Cir. 2003) (“In deportation proceedings, an alien’s right to be
represented by counsel is based on the due process guarantees
of the Fifth Amendment.”). Further, this Circuit has long rec-
ognized that an alien’s due process right to obtain counsel in
immigration matters also includes a right to competent repre-
sentation from a retained attorney. Because due process
requires more than the formal availability of counsel, we have
held that an alien is denied due process when his attorney pro-
vides ineffective assistance. See, e.g., Rodriguez-Lariz v. INS,
282 F.3d 1218, 1226-27 (9th Cir. 2002); Castillo-Perez v.
INS, 212 F.3d 518, 525-26 (9th Cir. 2000); see also Lopez v.
INS, 775 F.2d 1015, 1017 (9th Cir. 1985). “Ineffective assis-
tance of counsel in a deportation proceeding is a denial of due
process under the Fifth Amendment if the proceeding was so
fundamentally unfair that the alien was prevented from rea-
sonably presenting his case.” Lopez, 775 F.2d at 1017.
[2] In order to establish a valid due process claim for inef-
fective assistance of counsel, an alien must also clear several
hurdles, both substantive and procedural. First, the alien must
demonstrate that the attorney’s deficient performance was
prejudicial. See Iturribarria, 321 F.3d at 903 (concluding that
an attorney’s “flawed” performance did not provide a basis
for a due process claim because the alien could not “demon-
strate that counsel’s alleged malfeasance prejudiced his claim
for relief”). “[W]here 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 entire-
ly.” Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045
(9th Cir. 2000). In cases involving such error, the proceedings
are subject to a “ ‘presumption of prejudice,’ ” id. (quoting
Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)), and we will
find that a petitioner has been denied due process if he can
demonstrate “ ‘plausible grounds for relief’ ” on his underly-
ing claim, id. at 1046 (quoting United States v. Jiminez-
Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996)). See also
Siong v. INS, 376 F.3d 1030, 1037-38 (9th Cir. 2004). By
2098 RAY v. GONZALES
contrast, where counsel’s performance was inadequate but the
petitioner still had an opportunity to present his claim,
“[p]rejudice is found when the performance of counsel was so
inadequate that it may have affected the outcome of the pro-
ceedings.” Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999).
An alien generally must also meet several procedural
requirements that are unique to the immigration context. In
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), the BIA
held that an alien alleging ineffective assistance of counsel
must: (1) submit an affidavit demonstrating and explaining his
agreement with prior counsel regarding legal representation,
(2) submit evidence that he has informed prior counsel of the
allegations of ineffective assistance and provided the attorney
with an opportunity to respond, and (3) file a complaint
against the attorney with proper disciplinary authorities or
explain why such a complaint has not been filed. Id. at 639.
We have approved these so-called Lozada requirements, see
Ontiveros-Lopez, 213 F.3d 1121, 1123 (9th Cir. 2000), but we
have also cautioned that these requirements “are not sacro-
sanct,” Castillo-Perez, 212 F.3d at 525. While these proce-
dural requirements serve important policy goals — such as
ensuring that a legitimate claim actually exists and developing
an adequate factual basis for the BIA to adjudicate the claim,
see id. at 526 — we have not hesitated to address ineffective
assistance of counsel claims even when an alien fails to com-
ply strictly with Lozada. See, e.g., Rodriguez-Lariz, 282 F.3d
at 1227 (noting that the Lozada requirements “are not rigidly
applied, especially when the record shows a clear and obvious
case of ineffective assistance”); Castillo-Perez, 212 F.3d at
525 (noting that “the requirements of Lozada . . . need not be
rigidly enforced” when “an adequate factual basis exists in the
record for an ineffectiveness complaint and . . . the complaint
is a legitimate and substantial one”); Escobar-Grijalva v. INS,
206 F.3d 1331, 1335 (9th Cir. 2000) (explaining that a failure
to comply with the Lozada requirements is “not dispositive”
when “facts are plain on the face of the administrative
record”).
RAY v. GONZALES 2099
In this case, we face multiple claims of ineffective assis-
tance. Like a set of nested Russian dolls, the case reveals one
layer of allegedly incompetent representation after another.
Ray asserts that his first attorney, Jang Im, denied him due
process by failing to file his brief on appeal. Ray asserts that
his second attorney, Anthony Egbase, denied him due process
by failing to file his first motion to reopen in a timely fashion.
Ray asserts that his third attorney, Martin Guajardo, denied
him due process by failing to contest the BIA’s decision to
deny his first motion to reopen (or, for that matter, to do any-
thing else).
[3] We find that Ray has been denied due process because
of the failure of his last two attorneys, Mr. Egbase and Mr.
Guajardo, to litigate his case in a timely fashion. There is no
question that these two attorneys have provided assistance so
poor that Ray has been “prevented from reasonably presenting
his case.” Lopez, 775 F.2d at 1017. The former dallied for
several months before missing filing deadlines, neglecting fil-
ing requirements, and ultimately costing Ray the opportunity
to have his first motion to reopen heard on the merits. The lat-
ter took from Ray $10,000 in fees, and the record indicates
that he provided no substantive legal assistance whatsoever;
in doing nothing, he condemned to failure Ray’s second
motion to reopen. Indeed, these attorneys have prevented Ray
not only from “reasonably presenting his case,” but from pre-
senting his case at all. Their performance unquestionably con-
stitutes ineffective assistance. See Rodriguez-Lariz, 282 F.3d
at 1226 (holding that aliens “sufficiently established that their
due process rights were violated” by an attorney who made
“repeated representations” that he was handling their cases
but “inexplicably failed to submit the applications in a timely
fashion”); Castillo-Perez, 212 F.3d at 526 (holding that an
alien was denied due process where his attorney “failed, with-
out any reason, to timely file the application in spite of having
told [the alien] that he did file it”).
2100 RAY v. GONZALES
[4] There is also no question that these attorneys’ actions
were prejudicial. The BIA denied both the first and the second
motion to reopen on purely procedural grounds, citing Ray’s
failure to comply with filing deadlines.5 The BIA denied both
Ray’s first and second motions to reopen as untimely, and the
untimeliness of these motions was the direct result of his
5
The BIA argues that Ray is not entitled to relief because, even accept-
ing his claims of ineffective assistance of counsel, Ray still failed to pur-
sue his case by waiting over four months to file his second motion to
reopen. We are unpersuaded by this argument.
We have previously recognized that equitable tolling of a deadline for
a motion to reopen or reconsider is appropriate where, as here, “a peti-
tioner 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.” Iturribarria, 321 F.3d at 897; see also Rodriquez-Lariz,
282 F.3d at 1223-25. For example, in Albillo-De Leon v. Gonzales, 410
F.3d 1090 (9th Cir. 2005), we held that equitable tolling was appropriate
even where an alien filed a motion to reopen nearly one year after the fil-
ing deadline had passed. We noted that the fraud perpetrated on the peti-
tioner in Albillo-De Leon by his supposed “attorney” was not discovered
for months despite the alien’s diligent attempts to discover it. See id. at
1098.
As in Albillo-De Leon, the petitioner in this case received no assistance
from the attorney he had hired to pursue his appeal; according to Ray, his
attorney charged him $10,000 and then neglected to provide even minimal
assistance. Ray stated in his second motion to reopen that he “assumed
that Attorney Guajardo would handle” the second motion to reopen. Given
that reliance, it is reasonable to infer that Ray first had reason to know of
Mr. Guajardo’s ineffectiveness when the 90-day filing deadline passed on
December 22, 2002. After he learned of this ineffectiveness, Ray had to
perform certain tasks, such as filing a complaint with the California State
Bar, in order to meet the Lozada requirements. By February 4, 2002 —
little more than a month after the deadline had passed — Ray had obtained
other legal assistance, complied with all of the Lozada requirements, and
filed his second motion to reopen. Ray therefore diligently complied with
the filing deadlines, once those deadlines are tolled for the ninety-day
period during which Ray reasonably believed that an attorney was advo-
cating on his behalf. We therefore hold that the petitioner in this case, as
in Albillo-De Leon, is entitled to equitable tolling of the filing deadlines
and numerical restrictions and that his second motion to reopen is there-
fore entitled to consideration on the merits.
RAY v. GONZALES 2101
attorneys, Mr. Egbase and Mr. Guajardo, respectively. Ray
“would have timely appealed but for [his] counsel[s’] errors,”
and he is therefore entitled to a presumption of prejudice.
Dearinger, 232 F.3d at 1045. The government has failed to
rebut this presumption of prejudice. Ray’s petition for asylum
provides “ ‘plausible grounds for relief,’ ” id. at 1046 (quoting
Jiminez-Marmolejo, 104 F.3d at 1086), as it contains a vivid
personal account of torture and persecution at the hands of
Indian officials — an account that failed to win asylum only
because the IJ considered it incredible. Because “the BIA
could plausibly have held that [Ray] was [eligible for relief]
based on the record before it,” we find that the deficient per-
formances of Mr. Egbase and Mr. Guajardo were prejudicial
to Ray. Siong, 376 F.3d at 1038 (quoting Singh v. Ashcroft,
367 F.3d 1182, 1185 (9th Cir. 2004) (quoting Rojas-Garcia
v. Ashcroft, 339 F.3d 814, 827 (9th Cir. 2003)) (second alter-
ation in original)) (internal quotation marks omitted).
[5] Finally, we note that, as to Mr. Egbase and Mr. Gua-
jardo, Ray has also fully satisfied the Lozada requirements,
providing proof of his engagement with these attorneys, filing
formal grievances with the California State Bar, and thereby
providing notice to the attorneys of his complaints against
them. We therefore conclude that Ray has satisfied all the ele-
ments necessary to establish a claim for ineffective assistance
of counsel: he has demonstrated his attorneys’ shockingly
inadequate representation, he has shown that he is entitled to
a presumption of prejudice because his attorneys’ inadequate
assistance denied him the opportunity to present his case at
all, and he has satisfied the Lozada requirements. We there-
fore conclude that Ray was denied due process in the adjudi-
cation of his second motion to reopen.
[6] Because we find that Ray was denied due process as a
result of his attorneys’ deficient and detrimental performance,
we hold that the BIA abused its discretion by refusing to toll
the numerical and procedural bars to his second motion to
reopen. See, e.g., Iturribarria, 321 F.3d at 897; see also
2102 RAY v. GONZALES
Rodriquez-Lariz, 282 F.3d at 1223-25. Where, as here, an
alien provides proof that he retained legal help in a timely and
diligent fashion, repeatedly contacted his attorneys, paid them
large sums of money for their services, and received assur-
ances from them that they were handling his case appropri-
ately and diligently, only to discover that these attorneys have
failed to pursue his case in a timely fashion, or not at all, we
believe that he is entitled to equitable tolling of the deadlines
and numerical restrictions on filing a motion to reopen. Con-
sequently, we grant the petition for review of the BIA’s deci-
sion to deny his second motion to reopen.
[7] Moreover, because we have concluded that Mr. Egbase
provided ineffective assistance, we conclude a fortiori that the
BIA also abused its discretion by denying Ray’s first motion
to reopen on procedural grounds. We note that Ray retained
Mr. Egbase only four days after learning that the BIA had dis-
missed his appeal, that for quite some time the record of the
underlying immigration proceedings was unavailable because
neither Ray nor Mr. Egbase was able to locate Ray’s original
attorney from the deportation hearing, that Ray has provided
proof of numerous payments made to Mr. Egbase prior to the
filing deadline, and that Mr. Egbase nonetheless took no legal
action to postpone or comply with the filing deadline. In light
of these facts, the BIA’s dismissal of Ray’s initial motion to
reopen because it was “untimely filed” cannot stand.
Having concluded that the BIA abused its discretion by
denying Ray’s first and second motions to reopen on proce-
dural grounds, it is necessary to address the merits of Ray’s
motion to reopen — that is, his claim that his first attorney,
Jang Im, provided ineffective assistance of counsel by failing
to file a brief in support of his appeal. The government argues
that the BIA did in fact rule on the merits of Ray’s asylum
petition and that his appeal before us is therefore moot. In
support of this argument, the government points to the BIA’s
cursory statement on direct appeal that “upon review of the
record, we are not persuaded that the Immigration Judge’s
RAY v. GONZALES 2103
ultimate resolution of this case was in error.” We are unper-
suaded that the BIA’s cursory review of Ray’s appeal is suffi-
cient. Ray’s “right to have a full and fair presentation of his
claim included the right to have an attorney who would pres-
ent a viable legal argument on his behalf.” Lin v. Ashcroft,
377 F.3d 1014, 1025 (9th Cir. 2004). Mr. Im’s purported fail-
ure to file a brief rendered the BIA’s review of the merits of
Ray’s asylum claim incomplete; thus, the BIA’s cursory deci-
sion on the merits is not valid if it was the product of ineffec-
tive assistance of counsel. In other words, if Mr. Im did in fact
fail to file a brief on Ray’s behalf, then the BIA’s cursory
review of the merits of Ray’s appeal is insufficient because it
deprived Ray of the adversarial proceeding to which he was
entitled. See id. at 1026-27; Siong, 376 F.3d at 1037-38;
Dearinger, 232 F.3d at 1045-46.
For several reasons, however, we are not convinced that we
are in an appropriate position to resolve the merits of Ray’s
first motion to reopen regarding the allegedly deficient perfor-
mance of Mr. Im. First, Ray petitions this court from the
BIA’s denial of his second motion to reopen, and our holding
is limited to the conclusion that the BIA’s denial of that
motion is invalid. (We reach the issue of his first motion to
reopen only because our finding of ineffective assistance
regarding the second motion to reopen necessarily under-
mines the validity of the BIA’s decision to deny that first
motion on procedural grounds. As explained above, Egbase’s
ineffective assistance was the cause of Ray’s procedural
defaults on both the first motion and the second, and it would
be nonsensical for us to find that the attorney’s inadequate
assistance invalidated the BIA’s decision to deny the latter but
not the former.) To the extent that Ray asks us to grant his
first motion to reopen on the merits, we do not consider the
proceedings in an appropriate procedural posture to do so
because Ray does not petition us for a review of that motion.
Second, we are reluctant to rule on the merits of an issue
that the BIA has not itself addressed. In INS v. Ventura, 537
2104 RAY v. GONZALES
U.S. 12 (2000), the Supreme Court instructed that
“[g]enerally speaking, a court of appeals should remand a
case to an agency for decision of a matter that statutes place
primarily in agency hands.” Id. at 16-17. The decision of
whether to reopen a case is certainly one over which the BIA
typically has jurisdiction. See 8 C.F.R. § 103.3 (2005). It is
true that we have previously reached the merits of issues not
yet directly decided by the BIA. See, e.g., Rodriguez-Lariz,
282 F.3d at 1226 (deciding the merits of a motion to reopen
where the BIA had denied the motion on procedural grounds).
Moreover, we note that it may be appropriate for us to address
the merits of purely legal claims over which the BIA claims
no particular expertise and as to which we would not “ ‘in-
trude upon [a] domain which Congress has exclusively
entrusted to an administrative agency.’ ” Ventura, 537 U.S. at
16 (quoting SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)).
In this case, however, we decline to rule on the merits of a
claim that involves close examination of the BIA’s own
appeals process, including the legal significance of the intrica-
cies and details of Ray’s notice of appeal to the BIA.6 See
Singh v. Gonzales, 416 F.3d 1006, 1009-13 (9th Cir. 2005)
(discussing the requirements of a notice of appeal in immigra-
tion proceedings).
[8] Finally, we are unsure that the record before us presents
us with enough information to resolve the underlying issue on
the merits. We note Ray’s claim that his attorney on appeal,
Jang Im, simply failed to file a brief. We also note that the
Notice of Appeal indicated that Ray was representing himself
6
Ray argues that the BIA abused its discretion by denying his motion
to reopen because the notice of appeal contained a list of his grievances
with the IJ’s decision that was sufficiently detailed to support his appeal
even without a brief. See Toquero v. INS, 956 F.2d 193, 195 (9th Cir.
1992) (noting that a notice of appeal is sufficient to sustain an appeal
when it “ ‘inform[s] the BIA of what aspects of the IJ’s decision were
allegedly incorrect and why.’ ” (quoting Reyes-Mendoza v. INS, 774 F.2d
1364, 1365 (9th Cir. 1985)). We are not in a position to make that judg-
ment.
RAY v. GONZALES 2105
pro se when, according to Ray, he was in fact represented by
counsel. If Ray’s allegations are true, they would support yet
another claim for ineffective assistance of counsel. However,
the current record is insufficient to determine Ray’s underly-
ing claim of ineffective assistance of counsel against Mr. Im.
Because we consider it inappropriate at this stage to adjudi-
cate Ray’s underlying claim of ineffective assistance of coun-
sel against attorney Jang Im, we remand the case to the BIA
for it to consider Ray’s first motion to reopen on the merits.
III.
The petitioner has had the misfortune to hire two attorneys,
if not three, who have provided woefully inadequate legal
assistance. At the same time, the BIA has dismissed his plead-
ings on procedural grounds, using the blatant errors of his
attorneys to avoid addressing the merits of his complaints
against them. Because these attorneys violated Ray’s due pro-
cess rights, we conclude that the BIA abused its discretion in
denying Ray’s motions to reopen on procedural grounds. On
remand, the BIA shall consider the merits of Ray’s underlying
claim of ineffective assistance regarding Jang Im’s alleged
failure to file a brief on appeal. If, on remand, the BIA deter-
mines that Mr. Im provided ineffective assistance to Ray by
failing to file a brief on direct appeal, it should permit Ray to
file a brief in support of his appeal and should consider the
merits of his direct appeal from the IJ’s decision denying him
asylum. The petition is GRANTED and the case
REMANDED for further proceedings.