Kiranpal Singh v. Eric Holder, Jr.

MEMORANDUM

Kiranpal Singh (Singh) petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his untimely motion to reopen due to ineffective assistance of counsel. Singh specifically contends that the BIA abused its discretion when it failed to presume prejudice from his prior counsel’s alleged ineffective assistance in filing a boilerplate brief with the BIA.

The BIA did not abuse its discretion when it failed to apply a presumption of prejudice. An alien is entitled to a rebut-table presumption of prejudice if his counsel’s “incompetence prevents [him] from presenting his case altogether[.]” Santiago-Rodriguez v. Holder, 657 F.3d 820, 835 (9th Cir.2011). This court has not applied a presumption of prejudice when counsel filed a boilerplate brief. Instead, a presumption has been applied when counsel did not timely file or failed entirely to file a document. See, e.g., Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045-46 (9th Cir.2000) (untimely petition for review); Siong v. INS, 376 F.3d 1030, 1037-38 (9th Cir.2004) (untimely notice of appeal); Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir.2004) (failure to file a brief). Counsel’s error in…