Singh

PER CURIAM Opinion; Dissent by Judge McKEOWN.

ORDER

The opinion filed on August 23, 2010 [ 619 F.3d 1101 ] is amended as follows:

On page 12609 [ 619 F.3d at 1104 ] of the slip opinion, line 5: Insert footnote ul” after the sentence that ends, “280.” The text of the footnote should read: “Where an agency’s adjudicatory action has a retroactive effect, we have applied a five-factor test to determine whether application of the new administrative decision would be “contrary” to “legal and equitable principles.” See Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982). Nonetheless, because we conclude that application of Compean II to Singh would not have a retroactive effect under Landgraf, we need not reach the less stringent standard set forth in Montgomery Ward.”

With this amendment, no further motions or petitions may be filed.

OPINION

Rajinder Singh appeals from the district court’s order denying his petition for habeas corpus, filed pursuant to 28 U.S.C. § 2241 . We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm.

In order to seek habeas relief under section 2241, as Singh does, a petitioner must first, “as a prudential matter,” exhaust…

Dissenting:

I respectfully dissent. The heart of Singh’s claim is that his counsel failed to notify him of the final decision of the Board of Immigration Appeals (“BIA”) and failed to preserve his right to judicial review by the Ninth Circuit. The question is whether Singh was required to exhaust this claim at the BIA before filing his habeas corpus petition in federal court. I would hold that he was not required to do so — at the time Singh filed his habeas petition, there was no clear administrative option to exhaust.

The majority reaches the opposite conclusion by refusing to take the BIA at its word and relying instead on scattered dicta from our precedents. Rather than trying to read between the lines as to BIA practice or policy, we remanded this petition to the BIA so that the BIA could tell us whether Singh had the option to file a motion to reopen in order to pursue his claim. The BIA explained on remand that it was uncertain at best whether a motion to reopen was available to Singh to raise his ineffective assistance claim at the time he filed his habeas petition. By requiring that Singh seek reopening nonetheless, the majority holds Singh responsible for exhausting an…