FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRIDOON ZALBEG RAWSHAN NEHAD, 

Petitioner, No. 07-70606

v. Agency No. 

M A55-398-900 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 8, 2008—Pasadena, California

Filed July 31, 2008

Before: William A. Fletcher and Ronald M. Gould,

Circuit Judges, and Louis H. Pollak,* Senior District Judge.

Opinion by Judge Pollak

*Honorable Louis H. Pollak, Senior District Judge of the United States

District Court for the Eastern District of Pennsylvania, sitting by designation. 

9731
COUNSEL

Christy A. Choteau, Aguirre Law Group, San Diego, California, for the petitioner. 

Jacob A. Bashyrov, Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C., for the respondent. 

NEHAD v. MUKASEY 9735
OPINION

POLLAK, District Judge: 

Fridoon Zalbeg Rawshan Nehad (“Rawshan”) petitions for

review of an order denying his motion to reopen removal proceedings on the basis of ineffective assistance of his counsel,

Pieter Speyer. This is an atypical ineffective-assistance claim,

inasmuch as counsel’s alleged ineffectiveness derived not

from the giving of incompetent advice, but from pressuring

his client into accepting voluntary departure under threat of

counsel’s withdrawal. For the reasons that follow, we will

grant the petition for review and remand with instructions to

the Board of Immigration Appeals (“BIA”) to reopen petitioner’s case. 

I. Facts and procedural history

Rawshan is a citizen and native of Afghanistan and a lawful

permanent resident of the United States. He fled Afghanistan

in 1989 at age 16 to avoid military service and settled in Germany. In 2003, he immigrated to the United States as a lawful

permanent resident to live with other members of his family.

He has been diagnosed with schizophrenia and bipolar disorder, and, when not properly medicated, he experiences hallucinogenic episodes. 

In June 2005, the government served Rawshan with a

notice to appear alleging that he was removable under 8

U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of a crime of

domestic violence. Rawshan retained attorney Pieter Speyer

to represent him in removal proceedings. In July 2005, the

government lodged an additional charge that Rawshan was

removable under 8 U.S.C. § 1227(a)(2)(E)(ii) as an alien convicted of violating a protective order. In support of these

charges, the government submitted California court documents reflecting that, in February 2005, Rawshan pleaded

guilty to one count of battery in violation of California Penal

9736 NEHAD v. MUKASEY
Code § 242 and one count of violating a protective order in

violation of California Penal Code § 273.6(a). The documents

of conviction do not detail the circumstances of these charges.

According to an affidavit submitted by Rawshan’s sister,

Benazeer Roshan, she and other family members obtained the

protective order in response to one of Rawshan’s psychotic

episodes. They were, at the time, unaware of Rawshan’s mental illnesses. Roshan further attests that had they realized his

episode was the product of mental illness, they would not

have requested the order. How Rawshan violated the protective order is not reflected in the record. 

At a master calendar hearing in December 2005, the Immigration Judge (“IJ”) issued a preliminary ruling sustaining the

§ 1227(a)(2)(E)(ii) charge (for violating a protective order)

and rejecting the § 1227(a)(2)(E)(i) charge (for a crime of

domestic violence). The record does not contain a transcript

of the hearing or anything else detailing the reasons underlying the IJ’s decision. 

Following these preliminary rulings, the December 2005

hearing was continued to allow Rawshan to prepare an application for asylum and similar relief. The next hearing was set

for February 14, 2006, and Rawshan was expected to file any

applications for relief from removal at that time. 

On February 14, 2006, shortly before Rawshan was scheduled to appear before the IJ, he met with Speyer to finalize his

asylum application. According to Rawshan’s account of the

meeting, Speyer announced that he would not be able to continue representing Rawshan beyond that day’s hearing

because of a personal issue1 and because Rawshan’s case was

complicated. In addition, Rawshan attests that Speyer suggested that his claim for asylum was weak. Approximately

two hours before the hearing, Speyer proposed that, in lieu of

filing an asylum application, Rawshan accept voluntary

1According to Rawshan, Speyer said that his wife was ill. 

NEHAD v. MUKASEY 9737
departure, which, Speyer told Rawshan, would preserve Rawshan’s rights to return to the United States in the future. At the

hearing that day, Rawshan agreed to voluntary departure and

was given 60 days to leave the United States. 

Days before his deadline for leaving the United States,

Rawshan, through new counsel, filed a motion to reopen

based on Speyer’s ineffective assistance. Rawshan’s primary

argument was that Speyer acted improperly by presenting him

with a voluntary-departure proposal and a threat to withdraw

as counsel just two hours before a scheduled hearing. Rawshan further argued that he was prejudiced by this impropriety

because, in agreeing to voluntary departure, he waived a meritorious appeal on the issue of removability and forewent the

filing of a meritorious application for asylum and related

relief. In support of his motion, Rawshan submitted an affidavit in which he testified to Speyer’s conduct. He also submitted a complaint against Speyer filed with the California Bar

Association by his sister, Benazeer Roshan, and an affidavit

from her as well, both of which enlarged upon the testimony

in Rawshan’s affidavit.2 In support of his motion to reopen,

Rawshan included Speyer’s brief response to the bar complaint, in which Speyer stated that he “perceived a conflict

between Ms. Roshan’s plan for resolving this case and her

brother, Fridoon Rawshan’s, own wishes,” and that seeking

voluntary departure appeared to reconcile “everyone’s wishes.” 

The IJ denied Rawshan’s motion, ruling that the evidence

submitted did not establish that Speyer sought to withdraw

from the case for personal reasons. The IJ observed that

Speyer had not moved to withdraw, and that Speyer had completed Rawshan’s asylum application, which, according to the

IJ, suggested that Speyer was prepared to file an asylum

request had Rawshan wanted him to do so. The IJ essentially

2Ms. Roshan is an attorney and appears to be one of the family members

who paid for Speyer’s services. 

9738 NEHAD v. MUKASEY
credited Speyer’s explanation that there was some conflict

between Rawshan and his sister, and inferred that Speyer followed his client’s wishes by requesting voluntary departure.

The IJ further found that Rawshan’s conduct during the February 14, 2006, hearing suggested that Rawshan fully understood the consequences of accepting voluntary departure.3

Rawshan appealed to the BIA, and the BIA affirmed,

adopting the IJ’s view and adding its own. In his appeal to the

BIA, Rawshan also requested reopening on the ground of

changed country conditions and reconsideration of his removability. The BIA concluded that it lacked jurisdiction over

both supplemental requests. 

Rawshan petitions this court for review of the BIA’s affirmance of the IJ’s denial of his motion to reopen, as well as

the BIA’s refusal to consider his supplemental requests for

reconsideration and for reopening on the basis of changed

country conditions. 

II. Jurisdiction and standard of review

We have jurisdiction under 8 U.S.C. § 1252(a). 

Where, as here, the BIA expressly adopts the reasoning of

the IJ and adds some of its own reasoning, we review both

decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.

2005). “We review the denial of a motion to reopen for abuse

of discretion.” Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.

2008). Any findings of fact made in the course of the decision

are reviewed for substantial evidence. Jie Lin v. Ashcroft, 377

F.3d 1014, 1024 (9th Cir. 2004) (as amended). The BIA’s

decision not to consider a motion on jurisdictional grounds is

reviewed de novo. Lin v. Gonzales, 473 F.3d 979, 981 (9th

Cir. 2007). 

3

It would seem that the IJ must have been relying on his recollection of

the February 14, 2006, hearing, since, as noted above, the administrative

record contains no transcript of that proceeding. 

NEHAD v. MUKASEY 9739
III. Discussion

[1] We begin with the denial of Rawshan’s motion to

reopen on account of ineffective assistance of counsel. Litigants in removal proceedings have no Sixth Amendment right

to counsel; their counsel can, however, be so ineffective as to

deprive them of their Fifth Amendment right to due process

of law. Blanco v. Mukasey, 518 F.3d 714, 722 (9th Cir. 2008).

The Immigration and Nationality Act gives litigants in

removal proceedings a right to retain private counsel. 8

U.S.C. § 1362. “[I]f an individual chooses to retain counsel,

his or her due process right ‘includes a right to competent representation.’ ” Hernandez v. Mukasey, 524 F.3d 1014, 1017

(9th Cir. 2008) (quoting Ray v. Gonzales, 439 F.3d 582, 587

(9th Cir. 2006) (emphasis in original)). Representation by

competent counsel is particularly important in removal proceedings because “[t]he proliferation of immigration laws and

regulations has aptly been called a labyrinth that only a lawyer could navigate.” Biwot v. Gonzales, 403 F.3d 1094, 1098

(9th Cir. 2005). Thus, we have recognized that litigants in

removal proceedings rely heavily on their attorney’s advice.

See Hernandez, 524 F.3d at 1018. 

[2] “Ineffective assistance of counsel amounts to a violation

of due process if ‘the proceeding was so fundamentally unfair

that the alien was prevented from reasonably presenting his

case.’ ” Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.

2005) (citations omitted). To make out an ineffective assistance claim, an immigrant must show (1) that counsel’s performance was deficient, and (2) that counsel’s deficiency

caused prejudice. Id. at 793-94. Prejudice only results when

counsel’s performance is “so inadequate that it may have

affected the outcome of the proceedings.” Ortiz v. INS, 179

F.3d 1148, 1153 (9th Cir. 1999). 

A. Whether Speyer’s performance was deficient

The focus of Rawshan’s petition is not that Speyer’s advice

recommending voluntary departure was per se incompetent,

9740 NEHAD v. MUKASEY
but that Speyer violated his duties of loyalty and competence

by presenting this recommendation under improperly coercive

circumstances. In particular, Rawshan argues that it was

improper for Speyer to, in effect, threaten to withdraw from

the case if Rawshan refused to accept voluntary departure. 

[3] At the outset, we note that it is unclear what the IJ

thought happened at the February 14, 2006, meeting between

Rawshan and Speyer. The IJ found as follows: “The respondent [Rawshan] has not established that Attorney Speyer

requested voluntary departure on the respondent’s behalf for

his own personal reasons and out of a desire to withdraw from

the case.” This statement is unhelpful, because it is does not

explain whether the IJ disbelieved that Speyer intended to

withdraw at all, or merely disbelieved that Speyer’s

voluntary-departure recommendation was tainted by his desire

to withdraw from the case. No matter. We accept petitioner’s

testimony as true unless the IJ makes an express finding that

the testimony is not credible. Kataria v. INS, 232 F.3d 1107,

1114 (9th Cir. 2000). Because the IJ made no such finding

here, we must assume that Rawshan’s account of the February

14, 2006, meeting is accurate. 

[4] For completeness’ sake, we further observe that nothing

in this record suggests that Rawshan’s account of his meeting

with Speyer was inaccurate. The IJ cited three pieces of evidence that could have been thought to undercut Rawshan’s

testimony, but, on close examination, none of them can fairly

be read to do so. 

[5] For one, the IJ noted that Rawshan’s father, Khodarahm

Roshan Nehad (“Khodarahm”) submitted an affidavit that

made no mention of the February 14, 2006, meeting in which

Speyer allegedly announced his plans to withdraw as counsel.

This, according to the IJ, was a problem because Rawshan

testified that Khodarahm was present at that meeting, and thus

could have testified to its proceedings. Before us, the government relies on this so-called inconsistency between RawNEHAD v. MUKASEY 9741
shan’s affidavit and Khodarahm’s affidavit to argue that

Rawshan’s account was properly discounted. But Khodarahm’s affidavit was submitted and cited by Rawshan in his

reply to the government’s opposition to his motion to reopen

solely to address the government’s argument that Rawshan

did not have a well-founded fear of persecution at the hands

of the Taliban. In his affidavit, Khodarahm attested that he

served the United States government as a translator at Guantanamo Bay, and that his service would lead the Taliban to view

his son Rawshan as a political enemy. Khodarahm’s affidavit

was not written to address any facts related to Speyer’s performance; rather, it was written to offer testimony on a subject about which only Khodarahm could reliably testify: his

employment and its relationship to his son’s fear of persecution. No rule of law required Rawshan’s attorney to craft the

affidavit to discuss the ineffective-assistance issue in addition

to the well-founded-fear issue, so it is inappropriate to label

this omission an “inconsistency,” or to draw an inference

against Rawshan’s testimony on this basis. 

[6] Second, the IJ observed that Speyer did not make a formal motion to withdraw, seeming to imply that this fact somehow undercut Rawshan’s testimony. To the contrary, the lack

of any formal motion to withdraw is entirely consistent with

Rawshan’s story. According to Rawshan, Speyer announced

his intention to withdraw if Rawshan proceeded with his asylum claim. Because Rawshan agreed to voluntary departure,

Speyer did not move to withdraw. 

[7] Third, the IJ seemed to rely on Speyer’s response to

Rawshan’s bar complaint. In that letter, however, Speyer did

not deny Rawshan’s allegations. Instead, he stated that “[i]n

view of [new counsel’s] acceptance of the case, and [Rawshan’s] position expressed in his declaration, I do not believe

Rule 3-700 of the California Rules of Professional Conduct

[governing withdrawal] applies here.” What point Speyer was

trying to make is obscure, but there is little question that his

statement did not expressly deny or rebut the basic allegation

9742 NEHAD v. MUKASEY
that he intended to withdraw from the case if it progressed

beyond the February 14, 2006, hearing. Since Speyer’s

response did not address whether he planned to withdraw as

counsel, it cannot constitute substantial evidence in rebuttal of

that proposition. 

[8] Before us, the government relies on its trial counsel’s

affidavit to the effect that Speyer did a worthy job on behalf

of his client. Given the self-serving nature of this declaration,

it seems, at best, deserving of minimal weight (and, indeed,

the IJ did not address it). Perhaps more importantly, while the

government affiant stated that Speyer was zealous and that he

(unsuccessfully) sought the exercise of prosecutorial discretion in his client’s behalf with vigor at an early stage of the

removal proceedings, the affiant said nothing about the events

at the center of this dispute: whether Speyer threatened to

withdraw as counsel if Rawshan proceeded with his asylum

application. Indeed, the affiant could not address that issue, as

only Speyer, Rawshan, and Khodarahm were present when

withdrawal was discussed. 

As stated, it is not clear what factual findings the IJ

intended to make. To whatever extent the IJ found that Speyer

did not announce any intention to withdraw from the case,

that finding is not based on substantial evidence. Nothing in

the record contradicts Rawshan’s affidavit, the only first-hand

account of what transpired between attorney and client. We

proceed under the assumption that Rawshan’s account of his

meeting with Speyer is accurate. 

[9] Taking Rawshan’s testimony as true, on February 14,

2006, Speyer presented Rawshan with (1) his inability to continue with the representation beyond that day’s hearing, without any explanation of how Rawshan might obtain new

counsel (or even that he could likely obtain a continuance to

do so); (2) a (new) negative assessment of the merits of Rawshan’s claim;4

 and (3) an offer of voluntary departure, without

4According to Ms. Roshan’s affidavit and bar complaint, prior to February 14, 2006, Speyer advised Rawshan and his family that his asylum

NEHAD v. MUKASEY 9743
any exploration of other options (e.g., asking for a continuance to obtain new counsel, requesting voluntary departure at

the conclusion of removal proceedings), all within hours of a

scheduled hearing. These circumstances are self-evidently

coercive. It is unsurprising that Rawshan concluded that he

had no real option but to accept voluntary departure; as far as

he knew, the only other option was to proceed pro se, which,

understandably, seemed untenable. Crediting Rawshan’s

account, Speyer’s presentation misrepresented the situation by

failing to explain to Rawshan (1) that Speyer could only be

released from his obligation to represent Rawshan by the

immigration court, and (2) that Speyer had a duty to withdraw, if the IJ were to permit withdrawal, in a way that would

not cause Rawshan prejudice, which would include giving

Rawshan reasonable notice and time to secure new counsel.

These omissions left Rawshan with a grossly inaccurate

understanding of his options, and effectively coerced him into

accepting voluntary departure. 

[10] In rejecting the conclusion that Speyer’s conduct constituted ineffective assistance, the BIA and IJ seemed to rely

primarily on Speyer’s response to Rawshan’s bar complaint

citing a conflict between Rawshan and his sister over litigation strategy. It is unclear from the two opinions what precise

question of fact Speyer’s letter was thought to resolve, but it

appears that the IJ and BIA concluded that Speyer suggested

voluntary departure in good faith to resolve some conflict

between Rawshan and his sister. We cannot approve drawing

any such conclusion from Speyer’s letter. The letter is delphic

at best.5 It does not offer an account of the February 14, 2006,

application was likely to succeed. It appears that Speyer first presented a

negative assessment of the merits of Rawshan’s asylum application at the

February 14, 2006, meeting. 

5

It states, without additional detail, that Speyer “perceived a conflict

between Ms. Roshan’s plan for resolving this case and her brother [Rawshan’s], own wishes.” 

9744 NEHAD v. MUKASEY
meeting, nor does it explain the reasoning that undergirded

advising Rawshan to accept voluntary departure. While the

letter asserts disagreement with Rawshan’s bar complaint, it

lacks additional substance. Though the letter states that

Speyer perceived a conflict between Rawshan and his sister,

it explains neither the content of that conflict nor how the

conflict played into Speyer’s decision to advise voluntary

departure. In addition, the letter asserts that Speyer thought

that voluntary departure would accord with everyone’s

wishes, but it is devoid of any reasoning or explanation that

might support that assertion (not to mention the fact that

Speyer’s duty was to Rawshan, not to anyone else). In short,

because the letter lacks any explanatory details, it cannot

serve as substantial evidence for any factual determination

that Speyer’s recommendation was made to reconcile a familial conflict. Moreover, even were we to assume that the recommendation was so intended, the letter does not address the

weighty concern that Rawshan was forced to make a snap

decision in the face of his counsel threatening to withdraw. 

[11] Counsel’s incompetence only constitutes a violation of

due process if it renders the proceeding “so fundamentally

unfair that the alien is prevented from reasonably presenting

her case.” Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir.

2003). Our court has not had any previous occasion to address

an immigration ineffective-assistance claim based on counsel’s threat to withdraw. Therefore, to determine whether

Speyer’s conduct was sufficiently egregious to constitute ineffective assistance, we look to two sources for persuasive guidance: (1) counsel’s ethical obligations, cf. McClure v.

Thompson, 323 F.3d 1233, 1241-42 (9th Cir. 2003) (noting

that, when evaluating a Sixth Amendment claim for ineffective assistance, courts should take into account prevailing

norms of professional responsibility), and (2) our jurisprudence on a counsel’s threats to withdraw in similar areas of

law. 

[12] This case lies at the intersection of two ethical rules:

the rule on withdrawing as counsel and the rule defining the

NEHAD v. MUKASEY 9745
client’s scope of authority. The California rule on withdrawal

requires that a lawyer take all steps reasonably necessary to

protect his client when he withdraws, specifically including

“giving due notice to the client” and “allowing time for

employment of other counsel.” Cal. Rules of Prof’l Conduct

R. 3-700(A)(2) (1988). In addition, the rule provides that a

lawyer must withdraw if the lawyer’s “mental or physical

condition renders it unreasonably difficult to carry out the

employment effectively.” Cal. Rules of Prof’l Conduct R. 3-

700(B)(3) (1988). Here, it appears that Speyer faced a personal situation that made it difficult for him vigorously to pursue Rawshan’s objective of avoiding removal. Thus, under

California rules of professional conduct, his obligations were

to give Rawshan timely notice that Speyer needed to withdraw, and to protect Rawshan by ensuring that he had the time

and opportunity to secure new counsel. Under this rule,

Speyer should have, at the least, informed the immigration

court of his need to withdraw and asked, on Rawshan’s

behalf, for a continuance to allow Rawshan time to employ

new counsel. That Speyer’s omissions violated this rule is

clear. 

The second relevant rule deals with the allocation of

authority between lawyer and client. It is well settled that only

the client has the authority to define the objectives of the representation. See Davis v. State Bar, 655 P.2d 1276, 1279 (Cal.

1983); see also Model Rules of Prof’l Conduct R. 1.2(a)

(2002). Only the client, therefore, may decide whether to

make or accept an offer of settlement.6 Estate of Falco, 233

Cal. Rptr. 807, 815 (Cal. Ct. App. 1987) (“A client’s right to

reject settlement is absolute.”). While the lawyer is expected

to advise the client on the issue of settlement—and is obliged

to keep the client informed enough to make intelligent decisions in that regard, see Cal. Rules of Prof’l Conduct R. 3-500

6We begin by examining the allocation of authority in civil cases since

removal proceedings are, according to the Supreme Court, civil in nature.

INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). 

9746 NEHAD v. MUKASEY
(1997) & 3-510 (1988)—it is generally held that the lawyer

may not burden the client’s ability to make settlement decisions by structuring the representation agreement so as to

allow the lawyer to withdraw, or to ratchet up the cost of representation, if the client refuses an offer of settlement, see,

e.g., Compton v. Kittleson, 171 P.3d 172, 173 (Alaska 2007);

Jones v. Feiger, Collison & Killmer, 903 P.2d 27, 34 (Colo.

Ct. App. 1994) (holding that retainer provision under which,

inter alia, lawyer could withdraw if client rejected settlement

offer the lawyer deemed reasonable was impermissible), rev’d

on other grounds, 926 P.2d 1244 (Colo. 1996); Conn. Bar

Ass’n Comm. on Prof’l Ethics, Informal Op. 99-18 (1999)

(concluding that a fee agreement may not provide that the

amount due converts from a contingent fee to an hourly fee

if the client rejects a settlement offer the lawyer deems reasonable); Conn. Bar Ass’n Comm. on Prof’l Ethics, Informal

Op. 95-24 (1995) (concluding that retainer provision that lawyer may withdraw if client refuses a settlement offer the lawyer deems reasonable impermissibly impinges on client’s

right to decide whether to settle); State Bar of Mich. Standing

Comm. on Prof’l and Judicial Ethics, Op. RI-132 (1992) (stating that a clause providing that lawyers for a class would only

be paid by a third party if the lawyers shepherded the class to

settlement was unethical). 

[13] Similarly, it is generally held that a lawyer may not

withdraw merely because a client refuses to settle. See, e.g.,

Augustson v. Linea Aerea Nacional-Chile S.A., 76 F.3d 658,

663 (5th Cir. 1996) (“[T]he cases are in almost universal

agreement, that failure of the client to accept a settlement

offer does not constitute just cause for a withdrawing attorney

to collect fees.” (string citation omitted)); Ambrose v. Detroit

Edison Co., 237 N.W.2d 520, 523-24 (Mich. Ct. App. 1975)

(“The refusal to settle by a client can never be sufficient

grounds to constitute ‘good cause’ for an attorney to withdraw

. . . .”). It follows from these principles that a lawyer may not

burden a client’s decisionmaking by threatening to withdraw

if the client refuses to settle. Thus, under these principles, it

NEHAD v. MUKASEY 9747
was improper for Speyer to present Rawshan with an offer of

voluntary departure and, in effect, to threaten to withdraw as

counsel if Rawshan rejected it. 

[14] Similarly, in the criminal context, it is widely held that

counsel’s threatening to withdraw unless the defendant agrees

to plead guilty can render the plea involuntary. See Iaea v.

Sunn, 800 F.2d 861, 866-68 (9th Cir. 1986); see also Heiser

v. Ryan, 951 F.2d 559, 562 (3d Cir. 1991); United States v.

Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988); cf. Uresti v.

Lynaugh, 821 F.2d 1099, 1102 (5th Cir. 1987) (holding that

attorney’s threat to request to withdraw and find replacement

counsel if defendant did not plead guilty was unproblematic).

Along these same lines, one court of appeals has held that

counsel provides ineffective assistance when he threatens to

withdraw if his client insists on exercising his right to testify.

Nichols v. Butler, 953 F.2d 1550, 1552 (11th Cir. 1992).

Although the Fifth Amendment right that applies in immigration proceedings is not necessarily coterminous with the Sixth

Amendment right to counsel, this jurisprudence confirms that

it is improper for a lawyer to threaten to withdraw if his client

does not follow his advice on a matter of fundamental importance to the representation, and that doing so is both a violation of counsel’s duties to his client and egregious conduct

that threatens the fairness of the proceeding. 

[15] Crediting Rawshan’s account, it is clear that Speyer,

by announcing that he would withdraw if Rawshan did not

accept an offer of voluntary departure, impinged on Rawshan’s authority to decide whether, and on what terms, to concede his case. Moreover, Speyer violated his duty to insure

that withdrawal would be conducted in a manner that would

not prejudice his client. These failings unreasonably burdened

Rawshan’s authority to make a settlement decision and effectively deprived Rawshan of the ability to present his case to

the immigration court and to the BIA. 

9748 NEHAD v. MUKASEY
B. Whether Speyer’s misconduct prejudiced Rawshan

[16] “Prejudice is found when the performance of counsel

was so inadequate that it may have affected the outcome of

the proceedings.” Ortiz, 179 F.3d at 1153. To determine

whether the petitioner was prejudiced, the court “must consider the underlying merits of the case to come to a tentative

conclusion as to whether [petitioner’s] claim, if properly presented, would be viable.” Jie Lin, 377 F.3d at 1027. The question before us is not whether Rawshan’s claims would prevail,

but merely whether they are plausible enough to warrant consideration by the BIA on remand. Mohammed, 400 F.3d at

794. 

Rawshan argues that Speyer’s voluntary-departure recommendation prejudiced him because he had a nontrivial chance

of success both in applying for asylum and related relief and

in appealing the IJ’s determination that he was removable. 

Rawshan claims persecution on account of his ethnicity

(Hazara), political affiliation (anti-Taliban), and religion (Shia

Muslim). On all fronts, he claims that he would be persecuted

by the Taliban. Because the Taliban is not in power, he would

have to show that they are a group that the Afghan government is unwilling or unable to control, Ahmed v. Keisler, 504

F.3d 1183, 1191 (9th Cir. 2007), and he would have to show

that he has a well-founded fear of persecution at their hands,

see 8 U.S.C. § 1101(a)(42)(A). Establishing a well-founded

fear of persecution requires proof that persecution is a “ ‘reasonable possibility.’ ” Al-Harbi v. INS, 242 F.3d 882, 888 (9th

Cir. 2001) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421,

440 (1987)). “[E]ven a ten percent chance of persecution may

establish a well-founded fear.” Id.

In support of his claim, Rawshan has submitted (1) his

completed asylum application and an affidavit explaining that

he fears persecution because of his religion, ethnicity, and

father’s affiliation with the United States government; (2) varNEHAD v. MUKASEY 9749
ious news articles, government reports, and NGO reports documenting the growing power of the Taliban insurgency; (3)

news articles and NGO reports documenting the Taliban’s

persecution of Hazaras, Shias, and political opponents; and

(4) an affidavit from his father, Khodarahm, attesting that his

father’s service as a translator for the United States government at Guantanamo Bay would lead the Taliban to perceive

Rawshan as a political opponent, and thus to target him for

persecution. Khodarahm’s affidavit further claims that the

Taliban has killed the family members of some of Khodarahm’s fellow translators because of their affiliation with

the United States government. These materials are plainly sufficient to show that Rawshan had a plausible chance of proving a well-founded fear of persecution by persons the Afghan

government is unwilling or unable to control. 

[17] Rawshan also claims that he had a colorable appeal

from the IJ’s tentative order of removal. The IJ’s determination that Rawshan was removable was based on Rawshan’s

conviction for violating a protective order. It is undisputed

that this conviction was vacated nunc pro tunc when the trial

court, on the parties’ joint motion, granted Rawshan leave to

withdraw his guilty plea, and the prosecutor dismissed the

charge. The government, however, argued that the conviction

was still valid for immigration purposes because it was

vacated for rehabilitative or immigration-related reasons, not

for any substantive or procedural defect in the conviction

itself. We have generally followed that line of reasoning, but

we have required that the government prove by clear and convincing evidence that the court’s only reasons for vacating the

conviction were unrelated to any substantive or procedural

defect. Nath v. Gonzales, 467 F.3d 1185, 1188-1189 (9th Cir.

2006); see also 8 U.S.C. § 1229a(c)(3)(A) (providing that the

government must prove by clear and convincing evidence that

an alien previously admitted to the United States is removable). Here, it is true that Rawshan’s moving papers focused

on the immigration consequences of the conviction, but the

moving papers also touched on the fact that Rawshan was not

9750 NEHAD v. MUKASEY
informed of the immigration consequences of his plea, and

asserted that Rawshan’s mental illness caused him to violate

the protective order, which could be read to imply an insanity

defense to the charge. Without any explanation from the state

court (and there is none, as the court order is devoid of any

reasoning), it is difficult to know which of the reasons

reflected in the parties’ submission convinced the court to

allow Rawshan to withdraw his plea. Thus, Rawshan presents

colorable grounds for appeal. 

In light of the above analysis, Rawshan has presented evidence that Speyer’s midconduct may have affected the outcome of his case; accordingly, we conclude that Rawshan has

demonstrated prejudice. 

IV. Conclusion

Speyer’s deficient performance and the prejudice resulting

from it add up to a violation of Rawshan’s Fifth Amendment

right to due process. Faced with a due-process violation that

rendered the removal proceedings fundamentally unfair, the

BIA abused its discretion in denying Rawshan’s motion to

reopen. Ray, 439 F.3d at 590. 

[18] Because we will grant the petition on Rawshan’s

ineffective-assistance claim, we need not address his claims

for reconsideration of removal or reopening on the basis of

changed country conditions. Rawshan will be able to raise

both of those issues on remand. 

PETITION GRANTED and REMANDED. 

NEHAD v. MUKASEY 9751