Koci

MEMORANDUM ***

Rrafman Koci, a native and citizen of Albania, petitions for review of a Board of Immigration Appeals (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”) (No. 04-71718), and the BIA’s order denying his motion to reopen based on ineffective assistance of counsel (No. 04-73586). This court has jurisdiction to review final BIA orders. 8 U.S.C. § 1252 (a).

In his direct appeal, Koci challenges the IJ’s adverse credibility determination, which must be supported by substantial evidence on review. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). The record fully supports the IJ’s reasons for finding Koci incredible. Koci initially claimed his wife and child still resided in Albania, where his wife was in hiding in fear for her life; he later admitted his family resided with him in the United States. The initial lie was clearly intended to buttress his asylum claim. He denied several times under oath that he was related to his only witness. After consulting with counsel during a recess, Koci then admitted the witness was his…

concurring in part 1 and dissenting in part:

Binding precedent requires that Koci’s petition for review of the BIA’s order denying his motion to reopen (No. 04-73586) be granted. See Grigoryan v. Mukasey, 515 F.3d 999 (9th Cir.2008) (per curiam). Because Grigoryan compels a holding that the BIA abused its discretion by failing to presume prejudice from the ineffective assistance of Koci’s former counsel, I must respectfully dissent.

An alien claiming ineffective assistance of counsel in removal proceedings must normally establish prejudice by showing that “counsel’s performance was so inadequate that it may have affected the outcome of the proceedings.” Maravilla Ma-ravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004) (per curiam). However, in cases where counsel’s error is so fundamental as to “entirely deprive[ the alien] of meaningful review, she is entitled to a presumption of prejudice.” Grigoryan, 515 F.3d at 1006 . Although the Government may rebut this presumption, “it is not rebutted if a petitioner demonstrates a plausible ground[ ] for relief on her underlying claim.” Id.; accord Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir.2006). In Grigor-yan, we clarified that…