Singh v. Holder
2011 U.S. App. LEXIS 14873
| 9th Cir. | 2011Background
- Singh, a citizen of India, entered the U.S. on a visitor visa in 1998 and filed an affirmative asylum application two weeks after his visa expired.
- An IJ denied asylum and withholding of removal in 2003 and granted 60 days voluntary departure; Singh later learned of the decision and appealed with counsel Pandher.
- Singh married a U.S. citizen in 2004; he obtained an approved I-130 visa petition and sought adjustment of status.
- Pandher filed a problematic chain of filings (early 2000s) including a motion to remand and two erroneous asylum-related filings; Pandher did not inform Singh adequately about voluntary departure.
- Singh’s 2005 voluntary departure period expired with Singh remaining in the U.S.; failure to depart risked ineligibility for adjustment of status.
- In 2006, Singh retained new counsel, who alleged that Pandher’s ineffective assistance prevented timely, proper reopening to preserve eligibility for adjustment of status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused discretion by denying ineffective-assistance claim. | Singh | HOLDER | Yes; BIA abused discretion. |
| Whether Pandher's conduct prejudiced Singh by blocking adjustment eligibility. | Singh | HOLDER | Yes; prejudice established. |
| Whether equitable tolling for ineffective assistance applies to the motion to reopen. | Singh | HOLDER | Yes; tolling warranted. |
| Whether Singh remained eligible for adjustment of status under Zmijewska due to lack of notice of voluntary departure. | Singh | HOLDER | Remanded for application of Zmijewska considerations. |
| Whether remand to the BIA is appropriate given Pandher's ineffective assistance. | Singh | HOLDER | Remand appropriate to determine eligibility for adjustment. |
Key Cases Cited
- Iturribarria v. I.N.S., 321 F.3d 889 (9th Cir. 2003) (equitable tolling for ineffective assistance)
- Rodriguez-Lariz v. I.N.S., 282 F.3d 1218 (9th Cir. 2002) (separate consideration of tolling and merits)
- Avagyan v. Holder, 646 F.3d 672 (9th Cir. 2011) (preserving eligibility through timely reopening in visa-petition context)
- Desta v. Ashcroft, 365 F.3d 741 (9th Cir. 2004) (equitable tolling principles in immigration cases)
- El Himri v. Ashcroft, 344 F.3d 1261 (9th Cir. 2003) (stay of voluntary departure available for irreparable harm)
- Granados-Oseguera v. Mukasey, 546 F.3d 1011 (9th Cir. 2008) (counsel's ineffective assistance and prejudice considerations)
- Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004) (non-brilliance standard for counsel; not excusing deficient representation)