Huiyan Chen v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUIYAN CHEN, No. 16-72427
Petitioner, Agency No. A205-190-818
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2018**
Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.
Huiyan Chen, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration
judge’s (“IJ”) order denying her motion to reopen. We have jurisdiction under 8
U.S.C. § 1252. We review de novo questions of law. Mohammed v. Gonzales, 400
F.3d 785, 791-92 (9th Cir. 2005). We grant the petition for review and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The BIA erred in determining that Chen did not establish prejudice resulting
from her former counsel’s failure to timely file a notice of appeal. See Ray v.
Gonzales, 439 F.3d 582, 587 (9th Cir. 2006) (applying a presumption of prejudice
where petitioner’s counsel failed to file an appeal). Although the BIA properly
concluded that Chen is entitled to a rebuttable presumption of prejudice, the BIA
reasoned that the presumption was rebutted, and Chen therefore did not show
prejudice, because she failed to allege that the outcome of her case might have
been different had counsel timely filed a notice of appeal. But Chen only needed to
demonstrate plausible grounds for asylum and related relief in order to show
prejudice. See id. at 589 (presumption of prejudice was not rebutted because
petitioner’s personal account of persecution at the hands of government officials
showed plausible grounds for asylum, despite IJ’s adverse credibility
determination); Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir. 2004)
(presumption of prejudice is not rebutted if a petitioner is able to show plausible
grounds for relief).
Accordingly, we grant the petition for review and remand for the BIA to
determine whether Chen demonstrated plausible grounds for relief.
PETITION FOR REVIEW GRANTED; REMANDED.
2 16-72427