FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SVETLANA GRIGORYAN, 

Petitioner, No. 05-77020

v. Agency No.  A75-706-989 PETER D. KEISLER,* Acting

Attorney General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted May 16, 2007**

Filed November 19, 2007

Before: Harry Pregerson, Stephen Reinhardt, and

A. Wallace Tashima, Circuit Judges.

Per Curiam Opinion

*Peter D. Keisler is substituted for his predecessor, Alberto R. Gonzales, as Acting Attorney General of the United States, pursuant to Fed.

R. App. P. 43(c)(2). 

**This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

15011
COUNSEL

Artem M. Sarian, Esq., Glendale, California, for the petitioner. 

GRIGORYAN v. KEISLER 15013
Peter D. Keisler, Esq., Linda S. Wernery, Esq., Daniel G.

Lonegran, Esq., Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.,

for the respondent.

OPINION

PER CURIAM: 

Svetlana Grigoryan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’

(“BIA”) order denying her motion to reopen removal proceedings on the ground of ineffective assistance of counsel. Grigoryan previously applied for asylum, which the agency denied

for failure to demonstrate a nexus to a protected ground, and

this court denied her petition for review. Represented by new

counsel, she moved to reopen. The BIA denied and Grigoryan

now petitions for review. 

We have jurisdiction to review the BIA’s final order, 8

U.S.C. § 1252(a), and we review for abuse of discretion the

denial of a motion to reopen, Iturribarria v. INS, 321 F.3d

889, 894 (9th Cir. 2003). The BIA abuses its discretion when

it acts “arbitrarily, irrationally, or contrary to law.” Singh v.

INS, 213 F.3d 1050, 1052 (9th Cir. 2000). We review de novo

claims of due process violations arising from ineffective assistance of counsel. Rodriguez-Lariz v. INS, 282 F.3d 1218,

1222 (9th Cir. 2002). 

We deny in part and grant in part the petition for review,

and remand with instructions for the BIA to consider Grigoryan’s contention that she was entitled to benefit from a presumption of prejudice and that she demonstrated plausible

grounds for relief when she submitted evidence that her fear

of persecution had an objective basis.

15014 GRIGORYAN v. KEISLER
FACTS AND PROCEDURAL HISTORY

Grigoryan was born in Armenia of mixed ethnicity. Her

father was Armenian and her mother was Turkish. She

entered the United States in 1999 and applied for asylum. She

was represented by attorney Walter Burrier. The immigration

judge (“IJ”) assumed that Grigoryan was credible, but found

that she did not establish that she was persecuted on account

of a protected ground. Grigoryan claimed that she was persecuted and that she had a well-founded fear on account of her

ethnicity. 

In her asylum affidavit Grigoryan declared that she and her

parents were constantly harassed by Armenians because her

mother was Turkish. After her father’s death, she and her

mother and brother moved to Azerbaijan to live near her

mother’s relatives. In 1988, the war erupted in Azerbaijan

and, because she was Armenian, she was harassed, beaten,

and jailed. She and her husband and children fled to Russia.

In 1992, they returned to Armenia and struggled to survive

because of the hostility Armenians held against them because

they were from Azerbaijan. 

In 1994, Grigoryan became president of an Armenian aid

organization that assisted soldiers wounded in the war

between Armenia and Azerbaijan. Grigoryan testified that

there was personal animus between her and another woman

who wanted to be president of the organization, and that this

rival provoked others to attack her by telling them that she

was part Turkish and, therefore, did not properly care for the

wounded Armenian soldiers. She testified that, on January 15,

1995, the parents of some soldiers attacked and severely

injured her, and then attacked and killed her 13-year old son.

Grigoryan corroborated her testimony with medical records.

Grigoryan’s former attorney filed a boilerplate brief with

the BIA. Significant portions of the brief were irrelevant to

her case, such as a discussion of adverse credibility findings.

GRIGORYAN v. KEISLER 15015
The brief conceded that her testimony did not qualify her for

asylum, but asserted that the facts she set forth in her asylum

application did. However, the brief failed to state these facts

and merely incorporated by reference her asylum application.

The brief was almost devoid of specific references to Grigoryan’s case. 

The BIA summarily affirmed and, ostensibly pro se, Grigoryan petitioned this court for review. A previous screening

panel of this court concluded that substantial evidence supported the agency’s finding that Grigoryan did not establish

a nexus between the attack and a protected ground. See Grigoryan v. Ashcroft, 119 Fed. Appx. 163 (9th Cir. Jan. 12,

2005). 

Almost two years after the BIA’s final decision, Grigoryan

filed a motion to reopen and remand on grounds of ineffective

assistance of counsel. Grigoryan argued that she learned of

the ineffective assistance on May 20, 2005, when she met

with new counsel, and that equitable tolling applied. She

argued before the IJ that her former attorney failed to elicit

relevant facts, failed to meet with her, failed to submit appropriate background information, failed to amend her affidavit,

failed to provide the IJ and opposing counsel with original

documents in a timely fashion, did not tell her to look for documents, and was late for a court appearance. 

Grigoryan also argued that Burrier failed to file a meaningful brief in support of her appeal to the BIA, and offered to

assist her to petition for review even though he was not admitted to practice before this court. She stated that Burrier did not

advise her that he was ineligible to practice before the court

and had been sanctioned by it, and advised her to consult with

a disbarred attorney, Walter Wenko, who would write her

brief for her. Grigoryan attached several documents to the

motion, including but not limited to her affidavit attesting to

the claims regarding Burrier, and a finding by counsel for the

State of Connecticut that there was probable cause to find that

15016 GRIGORYAN v. KEISLER
Burrier engaged in misconduct and/or unethical conduct in

Grigoryan’s case. 

Grigoryan also attached a proposed brief to the BIA,

together with a motion to admit additional documents and to

remand, requesting the BIA to consider this brief in place of

the deficient brief submitted by Burrier. The new brief argued

there was in fact a nexus because the female rival, though

motivated herself by personal jealousy, spread a rumor so that

those who attacked Grigoryan and her son were motivated by

anti-Turkish and anti-Azeri animus. Grigoryan therefore

argued that she was eligible for asylum because she had

shown past persecution. She also argued that because she

established past persecution she was entitled to a presumption

of a well-founded fear and that attached evidence demonstrated that her fear had an objective basis. 

The new evidence did not relate to the 1995 attack, but purported to demonstrate that Grigoryan’s fear had an objective

basis because of antipathy and violence against people of

mixed Azeri or Turkish origin. The new evidence included a

United Nations report stating that Armenian-Azeri couples are

at risk of persecution in Armenia. Grigoryan also submitted

media reports about violent incidents and tension between

Armenians and Azeris and/or Turks. 

The BIA denied reopening. It found that Grigoryan’s

motion complied with the procedural requirements of Matter

of Lozada, 19 I. & N. Dec. 637 (BIA 1988), but was untimely

because it was filed more than 90 days after the BIA’s summary affirmance. It declined to consider whether the deadline

should be equitably tolled, concluding instead that, “assuming

ineffective assistance of counsel, the respondent has not demonstrated that she suffered prejudice as a result of her attorney’s ineffectiveness.” The BIA noted that the IJ, the BIA,

and this court concluded that Grigoryan did not establish that

the 1995 attack was on account of a protected ground, and

determined that the evidence she submitted with her motion

GRIGORYAN v. KEISLER 15017
“does mention problems in Armenia for persons of Azeri ethnic background, but that general information does not address

the fact that the respondent has not shown that she was

attacked because of her Azeri ethnicity.” 

Grigoryan timely petitioned for review. She contends that

the time limit for her motion to reopen was equitably tolled

as a result of ineffective assistance at the hearing, in her

agency appeal, and in her first petition for review, and that

she was prejudiced as a result. She further contends that she

was entitled to a presumption of prejudice because she was

effectively denied the opportunity to present her case. As

before the BIA, she does not contend that the evidence submitted with the motion demonstrates that the 1995 attack was

on account of a protected ground, but that there is animus and

violence in Armenia against people of mixed ethnicity and

that her fear of future persecution therefore has an objective

basis.

INEFFECTIVE ASSISTANCE OF COUNSEL

[1] A petitioner who raises an ineffective assistance of

counsel claim must satisfy several procedural requirements,

must demonstrate that counsel failed to perform with sufficient competence, and must establish “that she was prejudiced

by counsel’s performance.” Mohammed v. Gonzales, 400 F.3d

785, 793 (9th Cir. 2005). In the context of an ineffective assistance claim, “prejudice results when ‘the performance of

counsel was so inadequate that it may have affected the outcome of the proceedings.’ ” Id. at 793-94, citing Ortiz v. INS,

179 F.3d 1148, 1153 (9th Cir. 1999); accord Maravilla

Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004) (per

curiam).1

1This showing is different from that required in a motion to reopen on

grounds other than ineffective assistance, where the movant must show

prima facie eligibility for the underlying substantive relief requested. See,

e.g., INS v. Wang, 450 U.S. 139, 145 (1981) (per curiam). A prima facie

case is shown when the evidence reveals a reasonable likelihood that the

statutory requirements for the underlying substantive relief have been satisfied. See Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003); see also

Maravilla Maravilla, 381 F.3d at 858. 

15018 GRIGORYAN v. KEISLER
[2] We have recognized limited exceptions to the general

requirement of a showing of prejudice. For instance, a showing of prejudice is not required when a claim of ineffective

assistance of counsel is the basis for a motion to reopen proceedings in which the agency issued an in absentia removal

order. See, e.g., Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th

Cir. 2003). 

[3] Also, when a petitioner is entirely deprived of an appellate procedure due to ineffective assistance of counsel, prejudice is presumed. See Dearinger ex rel. Volkova v. Reno, 232

F.3d 1042, 1045 (9th Cir. 2000). In Dearinger, counsel failed

to file a timely petition for review and we held that “where an

alien is prevented from filing an appeal in an immigration

proceeding due to counsel’s error, the error deprives the alien

of the appellate proceeding entirely.” Id. Finding that the petitioner would have appealed but for the attorney’s error, we

held that prejudice could be presumed and affirmed the district court’s order granting her habeas corpus petition and

directing the government to reissue the order of deportation so

that she had a new period within which to obtain review by

this court. See id. at 1043, 1046. 

[4] In Ray v. Gonzales, 439 F.3d 582 (9th Cir. 2006), we

clarified the showing that a petitioner must make when the

presumption applies, holding that when prejudice is presumed, “we will find that a petitioner has been denied due

process if he can demonstrate plausible grounds for relief on

his underlying claim.” Id. at 587 (internal quotations and citations omitted). The government may rebut this presumption.

See id. at 589; see also Rojas-Garcia v. Ashcroft, 339 F.3d

814, 826 (9th Cir. 2003). In Ray, petitioner’s second attorney

failed to file a timely motion to reconsider or reopen and his

third attorney “provided no substantive legal assistance whatsoever[.]” Id. at 584, 588. These attorneys therefore “prevented Ray . . . from presenting his case at all.” Id. at 588

(emphasis in original). Because Ray would have appealed but

for the errors of his attorneys, he was entitled to a presumpGRIGORYAN v. KEISLER 15019
tion of prejudice, and the government did not rebut this presumption. See id. at 589. 

Likewise, in Siong v. INS, 376 F.3d 1030 (9th Cir. 2004),

petitioner’s first attorney filed an untimely notice of appeal

and we presumed prejudice and required a showing of “plausible grounds for relief.” Id. at 1038. In Rojas-Garcia, we presumed prejudice when counsel failed to file an appeal brief,

but found that the petitioner did not present plausible grounds

for relief and therefore denied the petition for review. See

Rojas-Garcia, 339 F.3d at 826, 828. 

Here, Grigoryan’s new attorney moved to reopen on

grounds of ineffective assistance by former counsel, arguing

that she was denied meaningful review and was entitled to a

presumption of prejudice. We agree. 

[5] The Grievance Counsel for the State of Connecticut

found “that there is probable cause that [Burrier] engaged in

misconduct and/or unethical conduct” in his representation of

Grigoryan before the agency and before this court. Burrier

filed a boilerplate brief before the BIA. Only a few lines were

specific to Grigoryan’s case. Several of its ten pages were

devoted to a discussion of adverse credibility findings, but in

this case the IJ did not make an adverse credibility finding.

The brief immediately conceded that Grigoryan’s testimony

did not qualify her for asylum: “The case is strange because

the appellant . . . testified to lots of heart rendering [sic] stuff

but nothing that would qualify for asylum.” Administrative

Record at 164. Instead, Burrier stated that Grigoryan’s asylum

application showed her eligibility for asylum. However, rather

than state these facts, the brief merely incorporated the application by reference, leaving it to the BIA to ferret out the purportedly critical information. Further, Grigoryan’s asylum

application was poorly drafted and prepared without the assistance of counsel. 

[6] Not only was Grigoryan prevented from reasonably presenting her case, see Lin v. Ashcroft, 377 F.3d 1014, 1024-27

15020 GRIGORYAN v. KEISLER
(9th Cir. 2004), but she was deprived of meaningful appellate

review, see Dearinger, 232 F.3d at 1045. As a result she was

entitled to a presumption of prejudice. See Ray, 439 F.3d at

586-89; Siong, 376 F.3d at 1038; Rojas-Garcia, 339 F.3d at

826; Dearinger, 232 F.3d at 1043. 

[7] The BIA, however, abused its discretion because it

failed to presume prejudice and placed the burden entirely on

Grigoryan to demonstrate prejudice. See Maravilla Maravilla,

381 F.3d at 858 (remanding for the BIA to consider prejudice

under the correct standard).

PAST PERSECUTION

Although a petitioner claiming ineffective assistance may

enjoy a presumption of prejudice, she must nevertheless

“demonstrate plausible grounds for relief on [her] underlying

claim.” Ray, 439 F.3d at 587. Further, the presumption is

rebuttable. See id. at 589. 

[8] Grigoryan argued in her motion to reopen that there was

a nexus to a protected ground in the 1995 attack because her

female rival incited ethnic hatred. The BIA rejected this argument and found that the additional evidence Grigoryan submitted did not support the argument. We agree. Our prior

disposition in this matter established that substantial evidence

supported the agency’s determination that Grigoryan had not

established a nexus. See Grigoryan, 119 Fed. Appx. 163. The

motion to reopen contained no evidence concerning the 1995

attack. The brief argued there was a nexus, but none of the

attached documents had any bearing on the 1995 attack. See

INS v. Wang, 450 U.S. 139, 141 (1981) (regulation requires

alien to support particular facts alleged in motion to reopen

“by affidavit or other evidentiary material”). 

[9] Grigoryan therefore failed to demonstrate plausible

grounds for relief on her claim of past persecution arising

from the 1995 attack. See Rojas-Garcia, 339 F.3d at 826

GRIGORYAN v. KEISLER 15021
(denying relief because petitioner “cannot show that his . . .

arguments might have been successful on appeal to the

BIA.”). Her ineffective assistance claim fails on this ground

and it is not necessary to consider whether the government

successfully rebutted the presumption of prejudice.

WELL-FOUNDED FEAR OF PERSECUTION

[10] Grigoryan also argued in her motion to reopen that,

independent of her past persecution claim, she had a wellfounded fear of future persecution. She supported her wellfounded fear claim with evidence of antipathy and violent acts

between Armenians and Azeris and of persecution in Armenia

of people of Armenian-Azeri ethnicity. The BIA stated that

she showed that there were “problems in Armenia for persons

of Azeri ethnic background,” but it did not consider her fear

of future persecution claim. Rather, it construed the documents only as failing to demonstrate a nexus between the

1995 attack and a protected ground — even though Grigoryan

made no claim that the documents were submitted for that

purpose. The BIA did not apply this evidence to Grigoryan’s

well-founded fear claim and, under INS v. Ventura, 537 U.S.

12, 16-17 (2002) (per curiam), we are prohibited from doing

so in the first instance. It follows that we are unable to assess

whether Grigoryan demonstrated plausible grounds for relief

on this claim, and must remand. See Ray, 439 F.3d at 587;

Maravilla Maravilla, 381 F.3d at 858.

CONCLUSION

In sum, a petitioner who claims ineffective assistance of

counsel must satisfy the procedural requirements, must demonstrate that counsel failed to perform with sufficient competence, and must establish that she was prejudiced by her

counsel’s inadequate performance by showing that it may

have affected the outcome of the proceeding. See, e.g.,

Mohammed, 400 F.3d at 793-94. When the petitioner has been

entirely deprived of meaningful review, she is entitled to a

15022 GRIGORYAN v. KEISLER
presumption of prejudice. See, e.g., Dearinger, 232 F.3d at

1043, 1046. This presumption may arise from counsel’s failure to file a timely notice of appeal or petition for review, his

failure to file a brief to the BIA or this court, or his filing of

a boilerplate brief. See Ray, 439 F.3d at 586-89; Siong, 376

F.3d at 1038; Rojas-Garcia, 339 F.3d at 826; Dearinger, 232

F.3d at 1043, 1046. The presumption may be rebutted. See,

e.g., Rojas-Garcia, 339 F.3d at 826. In addition, petitioner

must demonstrate plausible grounds for relief on her underlying claim. See, e.g., Ray, 439 F.3d at 587. 

In the instant petition, the record demonstrates that former

counsel filed a boilerplate brief to the BIA that resulted in

Grigoryan not receiving meaningful review. The BIA abused

its discretion when it failed to presume prejudice and instead

required Grigoryan to demonstrate that she suffered prejudice.

As to Grigoryan’s past persecution claim, whether or not

prejudice is presumed, she failed to show plausible grounds

for relief. Despite the opportunity to file new evidence, she

made no showing that the 1995 attack was on account of a

protected ground. We therefore conclude that the BIA did not

abuse its discretion, and deny in part the petition for review.

However, as to Grigoryan’s fear of future persecution claim,

the BIA abused its discretion when it failed to consider the

claim, failed to presume prejudice, and failed to determine

whether she established plausible grounds for relief. We

therefore grant in part the petition for review and remand so

that the BIA may make this determination in the first instance.

See Ventura, 537 U.S. at 16-17. 

PETITION FOR REVIEW DENIED in part;

GRANTED in part; REMANDED.

GRIGORYAN v. KEISLER 15023