Singh v. Holder , 375 F. App'x 770 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 14 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
KIRANPAL SINGH, No. 07-71167
Petitioner, Agency No. A079-572-573
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Kiranpal Singh, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings based on ineffective assistance of counsel. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the
denial of a motion to reopen, and review de novo questions of law, including
claims of due process violations due to ineffective assistance of counsel.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We grant the
petition for review and remand.
The BIA abused its discretion in basing its prejudice inquiry on a heightened
standard where it concluded that petitioner “failed to establish that the outcome of
his case would have been different.” See Maravilla Maravilla v. Ashcroft, 381
F.3d 855, 859 (9th Cir. 2004) (per curiam) (BIA abused its discretion by analyzing
prejudice under too stringent a standard where “[i]t should have asked only
whether [prior counsel’s] . . . performance may have affected the proceedings”).
We therefore remand for the BIA to reconsider prejudice and whether petitioner
established grounds for equitably tolling the regulatory filing deadline.
PETITION FOR REVIEW GRANTED; REMANDED.
2 07-71167