Rawshan Nehad v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRIDOON ZALBEG RAWSHAN NEHAD, 
Petitioner, No. 07-70606
v.
 Agency No.
A55-398-900
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 8, 2008—Pasadena, California
Filed July 31, 2008
Before: William A. Fletcher and Ronald M. Gould,
Circuit Judges, and Louis H. Pollak,* Senior District Judge.
Opinion by Judge Pollak
*Honorable Louis H. Pollak, Senior District Judge of the United States
District Court for the Eastern District of Pennsylvania, sitting by designa-
tion.
9731
NEHAD v. MUKASEY 9735
COUNSEL
Christy A. Choteau, Aguirre Law Group, San Diego, Califor-
nia, for the petitioner.
Jacob A. Bashyrov, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for the respondent.
9736 NEHAD v. MUKASEY
OPINION
POLLAK, District Judge:
Fridoon Zalbeg Rawshan Nehad (“Rawshan”) petitions for
review of an order denying his motion to reopen removal pro-
ceedings on the basis of ineffective assistance of his counsel,
Pieter Speyer. This is an atypical ineffective-assistance claim,
inasmuch as counsel’s alleged ineffectiveness derived not
from the giving of incompetent advice, but from pressuring
his client into accepting voluntary departure under threat of
counsel’s withdrawal. For the reasons that follow, we will
grant the petition for review and remand with instructions to
the Board of Immigration Appeals (“BIA”) to reopen petition-
er’s case.
I. Facts and procedural history
Rawshan is a citizen and native of Afghanistan and a lawful
permanent resident of the United States. He fled Afghanistan
in 1989 at age 16 to avoid military service and settled in Ger-
many. In 2003, he immigrated to the United States as a lawful
permanent resident to live with other members of his family.
He has been diagnosed with schizophrenia and bipolar disor-
der, and, when not properly medicated, he experiences hallu-
cinogenic episodes.
In June 2005, the government served Rawshan with a
notice to appear alleging that he was removable under 8
U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of a crime of
domestic violence. Rawshan retained attorney Pieter Speyer
to represent him in removal proceedings. In July 2005, the
government lodged an additional charge that Rawshan was
removable under 8 U.S.C. § 1227(a)(2)(E)(ii) as an alien con-
victed of violating a protective order. In support of these
charges, the government submitted California court docu-
ments reflecting that, in February 2005, Rawshan pleaded
guilty to one count of battery in violation of California Penal
NEHAD v. MUKASEY 9737
Code § 242 and one count of violating a protective order in
violation of California Penal Code § 273.6(a). The documents
of conviction do not detail the circumstances of these charges.
According to an affidavit submitted by Rawshan’s sister,
Benazeer Roshan, she and other family members obtained the
protective order in response to one of Rawshan’s psychotic
episodes. They were, at the time, unaware of Rawshan’s men-
tal illnesses. Roshan further attests that had they realized his
episode was the product of mental illness, they would not
have requested the order. How Rawshan violated the protec-
tive order is not reflected in the record.
At a master calendar hearing in December 2005, the Immi-
gration Judge (“IJ”) issued a preliminary ruling sustaining the
§ 1227(a)(2)(E)(ii) charge (for violating a protective order)
and rejecting the § 1227(a)(2)(E)(i) charge (for a crime of
domestic violence). The record does not contain a transcript
of the hearing or anything else detailing the reasons underly-
ing the IJ’s decision.
Following these preliminary rulings, the December 2005
hearing was continued to allow Rawshan to prepare an appli-
cation for asylum and similar relief. The next hearing was set
for February 14, 2006, and Rawshan was expected to file any
applications for relief from removal at that time.
On February 14, 2006, shortly before Rawshan was sched-
uled to appear before the IJ, he met with Speyer to finalize his
asylum application. According to Rawshan’s account of the
meeting, Speyer announced that he would not be able to con-
tinue representing Rawshan beyond that day’s hearing
because of a personal issue1 and because Rawshan’s case was
complicated. In addition, Rawshan attests that Speyer sug-
gested that his claim for asylum was weak. Approximately
two hours before the hearing, Speyer proposed that, in lieu of
filing an asylum application, Rawshan accept voluntary
1
According to Rawshan, Speyer said that his wife was ill.
9738 NEHAD v. MUKASEY
departure, which, Speyer told Rawshan, would preserve Raw-
shan’s rights to return to the United States in the future. At the
hearing that day, Rawshan agreed to voluntary departure and
was given 60 days to leave the United States.
Days before his deadline for leaving the United States,
Rawshan, through new counsel, filed a motion to reopen
based on Speyer’s ineffective assistance. Rawshan’s primary
argument was that Speyer acted improperly by presenting him
with a voluntary-departure proposal and a threat to withdraw
as counsel just two hours before a scheduled hearing. Raw-
shan further argued that he was prejudiced by this impropriety
because, in agreeing to voluntary departure, he waived a meri-
torious appeal on the issue of removability and forewent the
filing of a meritorious application for asylum and related
relief. In support of his motion, Rawshan submitted an affida-
vit in which he testified to Speyer’s conduct. He also submit-
ted a complaint against Speyer filed with the California Bar
Association by his sister, Benazeer Roshan, and an affidavit
from her as well, both of which enlarged upon the testimony
in Rawshan’s affidavit.2 In support of his motion to reopen,
Rawshan included Speyer’s brief response to the bar com-
plaint, in which Speyer stated that he “perceived a conflict
between Ms. Roshan’s plan for resolving this case and her
brother, Fridoon Rawshan’s, own wishes,” and that seeking
voluntary departure appeared to reconcile “everyone’s wish-
es.”
The IJ denied Rawshan’s motion, ruling that the evidence
submitted did not establish that Speyer sought to withdraw
from the case for personal reasons. The IJ observed that
Speyer had not moved to withdraw, and that Speyer had com-
pleted Rawshan’s asylum application, which, according to the
IJ, suggested that Speyer was prepared to file an asylum
request had Rawshan wanted him to do so. The IJ essentially
2
Ms. Roshan is an attorney and appears to be one of the family members
who paid for Speyer’s services.
NEHAD v. MUKASEY 9739
credited Speyer’s explanation that there was some conflict
between Rawshan and his sister, and inferred that Speyer fol-
lowed his client’s wishes by requesting voluntary departure.
The IJ further found that Rawshan’s conduct during the Feb-
ruary 14, 2006, hearing suggested that Rawshan fully under-
stood the consequences of accepting voluntary departure.3
Rawshan appealed to the BIA, and the BIA affirmed,
adopting the IJ’s view and adding its own. In his appeal to the
BIA, Rawshan also requested reopening on the ground of
changed country conditions and reconsideration of his remov-
ability. The BIA concluded that it lacked jurisdiction over
both supplemental requests.
Rawshan petitions this court for review of the BIA’s affir-
mance of the IJ’s denial of his motion to reopen, as well as
the BIA’s refusal to consider his supplemental requests for
reconsideration and for reopening on the basis of changed
country conditions.
II. Jurisdiction and standard of review
We have jurisdiction under 8 U.S.C. § 1252(a).
Where, as here, the BIA expressly adopts the reasoning of
the IJ and adds some of its own reasoning, we review both
decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.
2005). “We review the denial of a motion to reopen for abuse
of discretion.” Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.
2008). Any findings of fact made in the course of the decision
are reviewed for substantial evidence. Jie Lin v. Ashcroft, 377
F.3d 1014, 1024 (9th Cir. 2004) (as amended). The BIA’s
decision not to consider a motion on jurisdictional grounds is
reviewed de novo. Lin v. Gonzales, 473 F.3d 979, 981 (9th
Cir. 2007).
3
It would seem that the IJ must have been relying on his recollection of
the February 14, 2006, hearing, since, as noted above, the administrative
record contains no transcript of that proceeding.
9740 NEHAD v. MUKASEY
III. Discussion
[1] We begin with the denial of Rawshan’s motion to
reopen on account of ineffective assistance of counsel. Liti-
gants in removal proceedings have no Sixth Amendment right
to counsel; their counsel can, however, be so ineffective as to
deprive them of their Fifth Amendment right to due process
of law. Blanco v. Mukasey, 518 F.3d 714, 722 (9th Cir. 2008).
The Immigration and Nationality Act gives litigants in
removal proceedings a right to retain private counsel. 8
U.S.C. § 1362. “[I]f an individual chooses to retain counsel,
his or her due process right ‘includes a right to competent rep-
resentation.’ ” Hernandez v. Mukasey, 524 F.3d 1014, 1017
(9th Cir. 2008) (quoting Ray v. Gonzales, 439 F.3d 582, 587
(9th Cir. 2006) (emphasis in original)). Representation by
competent counsel is particularly important in removal pro-
ceedings because “[t]he proliferation of immigration laws and
regulations has aptly been called a labyrinth that only a law-
yer could navigate.” Biwot v. Gonzales, 403 F.3d 1094, 1098
(9th Cir. 2005). Thus, we have recognized that litigants in
removal proceedings rely heavily on their attorney’s advice.
See Hernandez, 524 F.3d at 1018.
[2] “Ineffective assistance of counsel amounts to a violation
of due process if ‘the proceeding was so fundamentally unfair
that the alien was prevented from reasonably presenting his
case.’ ” Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.
2005) (citations omitted). To make out an ineffective assis-
tance claim, an immigrant must show (1) that counsel’s per-
formance was deficient, and (2) that counsel’s deficiency
caused prejudice. Id. at 793-94. Prejudice only results when
counsel’s performance is “so inadequate that it may have
affected the outcome of the proceedings.” Ortiz v. INS, 179
F.3d 1148, 1153 (9th Cir. 1999).
A. Whether Speyer’s performance was deficient
The focus of Rawshan’s petition is not that Speyer’s advice
recommending voluntary departure was per se incompetent,
NEHAD v. MUKASEY 9741
but that Speyer violated his duties of loyalty and competence
by presenting this recommendation under improperly coercive
circumstances. In particular, Rawshan argues that it was
improper for Speyer to, in effect, threaten to withdraw from
the case if Rawshan refused to accept voluntary departure.
[3] At the outset, we note that it is unclear what the IJ
thought happened at the February 14, 2006, meeting between
Rawshan and Speyer. The IJ found as follows: “The respon-
dent [Rawshan] has not established that Attorney Speyer
requested voluntary departure on the respondent’s behalf for
his own personal reasons and out of a desire to withdraw from
the case.” This statement is unhelpful, because it is does not
explain whether the IJ disbelieved that Speyer intended to
withdraw at all, or merely disbelieved that Speyer’s
voluntary-departure recommendation was tainted by his desire
to withdraw from the case. No matter. We accept petitioner’s
testimony as true unless the IJ makes an express finding that
the testimony is not credible. Kataria v. INS, 232 F.3d 1107,
1114 (9th Cir. 2000). Because the IJ made no such finding
here, we must assume that Rawshan’s account of the February
14, 2006, meeting is accurate.
[4] For completeness’ sake, we further observe that nothing
in this record suggests that Rawshan’s account of his meeting
with Speyer was inaccurate. The IJ cited three pieces of evi-
dence that could have been thought to undercut Rawshan’s
testimony, but, on close examination, none of them can fairly
be read to do so.
[5] For one, the IJ noted that Rawshan’s father, Khodarahm
Roshan Nehad (“Khodarahm”) submitted an affidavit that
made no mention of the February 14, 2006, meeting in which
Speyer allegedly announced his plans to withdraw as counsel.
This, according to the IJ, was a problem because Rawshan
testified that Khodarahm was present at that meeting, and thus
could have testified to its proceedings. Before us, the govern-
ment relies on this so-called inconsistency between Raw-
9742 NEHAD v. MUKASEY
shan’s affidavit and Khodarahm’s affidavit to argue that
Rawshan’s account was properly discounted. But Kho-
darahm’s affidavit was submitted and cited by Rawshan in his
reply to the government’s opposition to his motion to reopen
solely to address the government’s argument that Rawshan
did not have a well-founded fear of persecution at the hands
of the Taliban. In his affidavit, Khodarahm attested that he
served the United States government as a translator at Guanta-
namo Bay, and that his service would lead the Taliban to view
his son Rawshan as a political enemy. Khodarahm’s affidavit
was not written to address any facts related to Speyer’s per-
formance; rather, it was written to offer testimony on a sub-
ject about which only Khodarahm could reliably testify: his
employment and its relationship to his son’s fear of persecu-
tion. No rule of law required Rawshan’s attorney to craft the
affidavit to discuss the ineffective-assistance issue in addition
to the well-founded-fear issue, so it is inappropriate to label
this omission an “inconsistency,” or to draw an inference
against Rawshan’s testimony on this basis.
[6] Second, the IJ observed that Speyer did not make a for-
mal motion to withdraw, seeming to imply that this fact some-
how undercut Rawshan’s testimony. To the contrary, the lack
of any formal motion to withdraw is entirely consistent with
Rawshan’s story. According to Rawshan, Speyer announced
his intention to withdraw if Rawshan proceeded with his asy-
lum claim. Because Rawshan agreed to voluntary departure,
Speyer did not move to withdraw.
[7] Third, the IJ seemed to rely on Speyer’s response to
Rawshan’s bar complaint. In that letter, however, Speyer did
not deny Rawshan’s allegations. Instead, he stated that “[i]n
view of [new counsel’s] acceptance of the case, and [Raw-
shan’s] position expressed in his declaration, I do not believe
Rule 3-700 of the California Rules of Professional Conduct
[governing withdrawal] applies here.” What point Speyer was
trying to make is obscure, but there is little question that his
statement did not expressly deny or rebut the basic allegation
NEHAD v. MUKASEY 9743
that he intended to withdraw from the case if it progressed
beyond the February 14, 2006, hearing. Since Speyer’s
response did not address whether he planned to withdraw as
counsel, it cannot constitute substantial evidence in rebuttal of
that proposition.
[8] Before us, the government relies on its trial counsel’s
affidavit to the effect that Speyer did a worthy job on behalf
of his client. Given the self-serving nature of this declaration,
it seems, at best, deserving of minimal weight (and, indeed,
the IJ did not address it). Perhaps more importantly, while the
government affiant stated that Speyer was zealous and that he
(unsuccessfully) sought the exercise of prosecutorial discre-
tion in his client’s behalf with vigor at an early stage of the
removal proceedings, the affiant said nothing about the events
at the center of this dispute: whether Speyer threatened to
withdraw as counsel if Rawshan proceeded with his asylum
application. Indeed, the affiant could not address that issue, as
only Speyer, Rawshan, and Khodarahm were present when
withdrawal was discussed.
As stated, it is not clear what factual findings the IJ
intended to make. To whatever extent the IJ found that Speyer
did not announce any intention to withdraw from the case,
that finding is not based on substantial evidence. Nothing in
the record contradicts Rawshan’s affidavit, the only first-hand
account of what transpired between attorney and client. We
proceed under the assumption that Rawshan’s account of his
meeting with Speyer is accurate.
[9] Taking Rawshan’s testimony as true, on February 14,
2006, Speyer presented Rawshan with (1) his inability to con-
tinue with the representation beyond that day’s hearing, with-
out any explanation of how Rawshan might obtain new
counsel (or even that he could likely obtain a continuance to
do so); (2) a (new) negative assessment of the merits of Raw-
shan’s claim;4 and (3) an offer of voluntary departure, without
4
According to Ms. Roshan’s affidavit and bar complaint, prior to Febru-
ary 14, 2006, Speyer advised Rawshan and his family that his asylum
9744 NEHAD v. MUKASEY
any exploration of other options (e.g., asking for a continu-
ance to obtain new counsel, requesting voluntary departure at
the conclusion of removal proceedings), all within hours of a
scheduled hearing. These circumstances are self-evidently
coercive. It is unsurprising that Rawshan concluded that he
had no real option but to accept voluntary departure; as far as
he knew, the only other option was to proceed pro se, which,
understandably, seemed untenable. Crediting Rawshan’s
account, Speyer’s presentation misrepresented the situation by
failing to explain to Rawshan (1) that Speyer could only be
released from his obligation to represent Rawshan by the
immigration court, and (2) that Speyer had a duty to with-
draw, if the IJ were to permit withdrawal, in a way that would
not cause Rawshan prejudice, which would include giving
Rawshan reasonable notice and time to secure new counsel.
These omissions left Rawshan with a grossly inaccurate
understanding of his options, and effectively coerced him into
accepting voluntary departure.
[10] In rejecting the conclusion that Speyer’s conduct con-
stituted ineffective assistance, the BIA and IJ seemed to rely
primarily on Speyer’s response to Rawshan’s bar complaint
citing a conflict between Rawshan and his sister over litiga-
tion strategy. It is unclear from the two opinions what precise
question of fact Speyer’s letter was thought to resolve, but it
appears that the IJ and BIA concluded that Speyer suggested
voluntary departure in good faith to resolve some conflict
between Rawshan and his sister. We cannot approve drawing
any such conclusion from Speyer’s letter. The letter is delphic
at best.5 It does not offer an account of the February 14, 2006,
application was likely to succeed. It appears that Speyer first presented a
negative assessment of the merits of Rawshan’s asylum application at the
February 14, 2006, meeting.
5
It states, without additional detail, that Speyer “perceived a conflict
between Ms. Roshan’s plan for resolving this case and her brother [Raw-
shan’s], own wishes.”
NEHAD v. MUKASEY 9745
meeting, nor does it explain the reasoning that undergirded
advising Rawshan to accept voluntary departure. While the
letter asserts disagreement with Rawshan’s bar complaint, it
lacks additional substance. Though the letter states that
Speyer perceived a conflict between Rawshan and his sister,
it explains neither the content of that conflict nor how the
conflict played into Speyer’s decision to advise voluntary
departure. In addition, the letter asserts that Speyer thought
that voluntary departure would accord with everyone’s
wishes, but it is devoid of any reasoning or explanation that
might support that assertion (not to mention the fact that
Speyer’s duty was to Rawshan, not to anyone else). In short,
because the letter lacks any explanatory details, it cannot
serve as substantial evidence for any factual determination
that Speyer’s recommendation was made to reconcile a famil-
ial conflict. Moreover, even were we to assume that the rec-
ommendation was so intended, the letter does not address the
weighty concern that Rawshan was forced to make a snap
decision in the face of his counsel threatening to withdraw.
[11] Counsel’s incompetence only constitutes a violation of
due process if it renders the proceeding “so fundamentally
unfair that the alien is prevented from reasonably presenting
her case.” Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir.
2003). Our court has not had any previous occasion to address
an immigration ineffective-assistance claim based on coun-
sel’s threat to withdraw. Therefore, to determine whether
Speyer’s conduct was sufficiently egregious to constitute inef-
fective assistance, we look to two sources for persuasive guid-
ance: (1) counsel’s ethical obligations, cf. McClure v.
Thompson, 323 F.3d 1233, 1241-42 (9th Cir. 2003) (noting
that, when evaluating a Sixth Amendment claim for ineffec-
tive assistance, courts should take into account prevailing
norms of professional responsibility), and (2) our jurispru-
dence on a counsel’s threats to withdraw in similar areas of
law.
[12] This case lies at the intersection of two ethical rules:
the rule on withdrawing as counsel and the rule defining the
9746 NEHAD v. MUKASEY
client’s scope of authority. The California rule on withdrawal
requires that a lawyer take all steps reasonably necessary to
protect his client when he withdraws, specifically including
“giving due notice to the client” and “allowing time for
employment of other counsel.” Cal. Rules of Prof’l Conduct
R. 3-700(A)(2) (1988). In addition, the rule provides that a
lawyer must withdraw if the lawyer’s “mental or physical
condition renders it unreasonably difficult to carry out the
employment effectively.” Cal. Rules of Prof’l Conduct R. 3-
700(B)(3) (1988). Here, it appears that Speyer faced a per-
sonal situation that made it difficult for him vigorously to pur-
sue Rawshan’s objective of avoiding removal. Thus, under
California rules of professional conduct, his obligations were
to give Rawshan timely notice that Speyer needed to with-
draw, and to protect Rawshan by ensuring that he had the time
and opportunity to secure new counsel. Under this rule,
Speyer should have, at the least, informed the immigration
court of his need to withdraw and asked, on Rawshan’s
behalf, for a continuance to allow Rawshan time to employ
new counsel. That Speyer’s omissions violated this rule is
clear.
The second relevant rule deals with the allocation of
authority between lawyer and client. It is well settled that only
the client has the authority to define the objectives of the rep-
resentation. See Davis v. State Bar, 655 P.2d 1276, 1279 (Cal.
1983); see also Model Rules of Prof’l Conduct R. 1.2(a)
(2002). Only the client, therefore, may decide whether to
make or accept an offer of settlement.6 Estate of Falco, 233
Cal. Rptr. 807, 815 (Cal. Ct. App. 1987) (“A client’s right to
reject settlement is absolute.”). While the lawyer is expected
to advise the client on the issue of settlement—and is obliged
to keep the client informed enough to make intelligent deci-
sions in that regard, see Cal. Rules of Prof’l Conduct R. 3-500
6
We begin by examining the allocation of authority in civil cases since
removal proceedings are, according to the Supreme Court, civil in nature.
INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984).
NEHAD v. MUKASEY 9747
(1997) & 3-510 (1988)—it is generally held that the lawyer
may not burden the client’s ability to make settlement deci-
sions by structuring the representation agreement so as to
allow the lawyer to withdraw, or to ratchet up the cost of rep-
resentation, if the client refuses an offer of settlement, see,
e.g., Compton v. Kittleson, 171 P.3d 172, 173 (Alaska 2007);
Jones v. Feiger, Collison & Killmer, 903 P.2d 27, 34 (Colo.
Ct. App. 1994) (holding that retainer provision under which,
inter alia, lawyer could withdraw if client rejected settlement
offer the lawyer deemed reasonable was impermissible), rev’d
on other grounds, 926 P.2d 1244 (Colo. 1996); Conn. Bar
Ass’n Comm. on Prof’l Ethics, Informal Op. 99-18 (1999)
(concluding that a fee agreement may not provide that the
amount due converts from a contingent fee to an hourly fee
if the client rejects a settlement offer the lawyer deems rea-
sonable); Conn. Bar Ass’n Comm. on Prof’l Ethics, Informal
Op. 95-24 (1995) (concluding that retainer provision that law-
yer may withdraw if client refuses a settlement offer the law-
yer deems reasonable impermissibly impinges on client’s
right to decide whether to settle); State Bar of Mich. Standing
Comm. on Prof’l and Judicial Ethics, Op. RI-132 (1992) (stat-
ing that a clause providing that lawyers for a class would only
be paid by a third party if the lawyers shepherded the class to
settlement was unethical).
[13] Similarly, it is generally held that a lawyer may not
withdraw merely because a client refuses to settle. See, e.g.,
Augustson v. Linea Aerea Nacional-Chile S.A., 76 F.3d 658,
663 (5th Cir. 1996) (“[T]he cases are in almost universal
agreement, that failure of the client to accept a settlement
offer does not constitute just cause for a withdrawing attorney
to collect fees.” (string citation omitted)); Ambrose v. Detroit
Edison Co., 237 N.W.2d 520, 523-24 (Mich. Ct. App. 1975)
(“The refusal to settle by a client can never be sufficient
grounds to constitute ‘good cause’ for an attorney to withdraw
. . . .”). It follows from these principles that a lawyer may not
burden a client’s decisionmaking by threatening to withdraw
if the client refuses to settle. Thus, under these principles, it
9748 NEHAD v. MUKASEY
was improper for Speyer to present Rawshan with an offer of
voluntary departure and, in effect, to threaten to withdraw as
counsel if Rawshan rejected it.
[14] Similarly, in the criminal context, it is widely held that
counsel’s threatening to withdraw unless the defendant agrees
to plead guilty can render the plea involuntary. See Iaea v.
Sunn, 800 F.2d 861, 866-68 (9th Cir. 1986); see also Heiser
v. Ryan, 951 F.2d 559, 562 (3d Cir. 1991); United States v.
Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988); cf. Uresti v.
Lynaugh, 821 F.2d 1099, 1102 (5th Cir. 1987) (holding that
attorney’s threat to request to withdraw and find replacement
counsel if defendant did not plead guilty was unproblematic).
Along these same lines, one court of appeals has held that
counsel provides ineffective assistance when he threatens to
withdraw if his client insists on exercising his right to testify.
Nichols v. Butler, 953 F.2d 1550, 1552 (11th Cir. 1992).
Although the Fifth Amendment right that applies in immigra-
tion proceedings is not necessarily coterminous with the Sixth
Amendment right to counsel, this jurisprudence confirms that
it is improper for a lawyer to threaten to withdraw if his client
does not follow his advice on a matter of fundamental impor-
tance to the representation, and that doing so is both a viola-
tion of counsel’s duties to his client and egregious conduct
that threatens the fairness of the proceeding.
[15] Crediting Rawshan’s account, it is clear that Speyer,
by announcing that he would withdraw if Rawshan did not
accept an offer of voluntary departure, impinged on Raw-
shan’s authority to decide whether, and on what terms, to con-
cede his case. Moreover, Speyer violated his duty to insure
that withdrawal would be conducted in a manner that would
not prejudice his client. These failings unreasonably burdened
Rawshan’s authority to make a settlement decision and effec-
tively deprived Rawshan of the ability to present his case to
the immigration court and to the BIA.
NEHAD v. MUKASEY 9749
B. Whether Speyer’s misconduct prejudiced Rawshan
[16] “Prejudice is found when the performance of counsel
was so inadequate that it may have affected the outcome of
the proceedings.” Ortiz, 179 F.3d at 1153. To determine
whether the petitioner was prejudiced, the court “must con-
sider the underlying merits of the case to come to a tentative
conclusion as to whether [petitioner’s] claim, if properly pres-
ented, would be viable.” Jie Lin, 377 F.3d at 1027. The ques-
tion before us is not whether Rawshan’s claims would prevail,
but merely whether they are plausible enough to warrant con-
sideration by the BIA on remand. Mohammed, 400 F.3d at
794.
Rawshan argues that Speyer’s voluntary-departure recom-
mendation prejudiced him because he had a nontrivial chance
of success both in applying for asylum and related relief and
in appealing the IJ’s determination that he was removable.
Rawshan claims persecution on account of his ethnicity
(Hazara), political affiliation (anti-Taliban), and religion (Shia
Muslim). On all fronts, he claims that he would be persecuted
by the Taliban. Because the Taliban is not in power, he would
have to show that they are a group that the Afghan govern-
ment is unwilling or unable to control, Ahmed v. Keisler, 504
F.3d 1183, 1191 (9th Cir. 2007), and he would have to show
that he has a well-founded fear of persecution at their hands,
see 8 U.S.C. § 1101(a)(42)(A). Establishing a well-founded
fear of persecution requires proof that persecution is a “ ‘rea-
sonable possibility.’ ” Al-Harbi v. INS, 242 F.3d 882, 888 (9th
Cir. 2001) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421,
440 (1987)). “[E]ven a ten percent chance of persecution may
establish a well-founded fear.” Id.
In support of his claim, Rawshan has submitted (1) his
completed asylum application and an affidavit explaining that
he fears persecution because of his religion, ethnicity, and
father’s affiliation with the United States government; (2) var-
9750 NEHAD v. MUKASEY
ious news articles, government reports, and NGO reports doc-
umenting the growing power of the Taliban insurgency; (3)
news articles and NGO reports documenting the Taliban’s
persecution of Hazaras, Shias, and political opponents; and
(4) an affidavit from his father, Khodarahm, attesting that his
father’s service as a translator for the United States govern-
ment at Guantanamo Bay would lead the Taliban to perceive
Rawshan as a political opponent, and thus to target him for
persecution. Khodarahm’s affidavit further claims that the
Taliban has killed the family members of some of Kho-
darahm’s fellow translators because of their affiliation with
the United States government. These materials are plainly suf-
ficient to show that Rawshan had a plausible chance of prov-
ing a well-founded fear of persecution by persons the Afghan
government is unwilling or unable to control.
[17] Rawshan also claims that he had a colorable appeal
from the IJ’s tentative order of removal. The IJ’s determina-
tion that Rawshan was removable was based on Rawshan’s
conviction for violating a protective order. It is undisputed
that this conviction was vacated nunc pro tunc when the trial
court, on the parties’ joint motion, granted Rawshan leave to
withdraw his guilty plea, and the prosecutor dismissed the
charge. The government, however, argued that the conviction
was still valid for immigration purposes because it was
vacated for rehabilitative or immigration-related reasons, not
for any substantive or procedural defect in the conviction
itself. We have generally followed that line of reasoning, but
we have required that the government prove by clear and con-
vincing evidence that the court’s only reasons for vacating the
conviction were unrelated to any substantive or procedural
defect. Nath v. Gonzales, 467 F.3d 1185, 1188-1189 (9th Cir.
2006); see also 8 U.S.C. § 1229a(c)(3)(A) (providing that the
government must prove by clear and convincing evidence that
an alien previously admitted to the United States is remov-
able). Here, it is true that Rawshan’s moving papers focused
on the immigration consequences of the conviction, but the
moving papers also touched on the fact that Rawshan was not
NEHAD v. MUKASEY 9751
informed of the immigration consequences of his plea, and
asserted that Rawshan’s mental illness caused him to violate
the protective order, which could be read to imply an insanity
defense to the charge. Without any explanation from the state
court (and there is none, as the court order is devoid of any
reasoning), it is difficult to know which of the reasons
reflected in the parties’ submission convinced the court to
allow Rawshan to withdraw his plea. Thus, Rawshan presents
colorable grounds for appeal.
In light of the above analysis, Rawshan has presented evi-
dence that Speyer’s midconduct may have affected the out-
come of his case; accordingly, we conclude that Rawshan has
demonstrated prejudice.
IV. Conclusion
Speyer’s deficient performance and the prejudice resulting
from it add up to a violation of Rawshan’s Fifth Amendment
right to due process. Faced with a due-process violation that
rendered the removal proceedings fundamentally unfair, the
BIA abused its discretion in denying Rawshan’s motion to
reopen. Ray, 439 F.3d at 590.
[18] Because we will grant the petition on Rawshan’s
ineffective-assistance claim, we need not address his claims
for reconsideration of removal or reopening on the basis of
changed country conditions. Rawshan will be able to raise
both of those issues on remand.
PETITION GRANTED and REMANDED.