Furthermore, although the IAC claim has not been exhausted before the BIA, we may review it "since it is his first opportunity to raise it, and the claim asserts a due process violation." Granados-Osegiiera v. Gonzales, 464 F.3d 993, 997 (9th Cir. 2006). Here, we need not conduct a full review of Granados's IAC claim on the merits; rather, we only analyze Granados's claim to determine whether we should remand to the BIA to consider this claim in the first instance.
The government first argues that we lack jurisdiction over this petition for review because Hernandez-Mendoza did not administratively exhaust his claim of ineffective assistance of counsel ("LAC") with the BIA by filing a motion to reopen. The government's argument is foreclosed by Granados-Oseguera v. Gonzales, 464 F.3d 993 (9th Cir. 2006), where we held that a motion to reopen is not an administrative remedy available as of right so as to bar review of an IAC claim raised for the first time in a petitioner's opening brief to this court. See id. at 997 ("[W]e may review [the petitioner's IAC claim] since it is his first opportunity to raise it, and the claim asserts a due process violation.").
ORDER The opinion, published at 464 F.3d 993, is WITHDRAWN. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. OPINION
We review the denial of Soto's motion to reopen for an abuse of discretion. See Granados-Oseguera v. Gonzales, 464 F.3d 993, 996 (9th Cir. 2006). We review the due process claim of ineffective assistance de novo, and review the BIA's factual findings for substantial evidence.
Though neither party has addressed this, from the record before us, it is clear that Mr. Silverberg's representation of Lopez-Vega was deficient. Mr. Silverberg's alleged failure to accurately complete the certificate of service, as well as his failure to file the corrected appeal by the June 30, 2004 deadline, constitute "egregious" errors which prejudiced Lopez-Vega's appeal. Matter of Compean, 24 I. N. Dec. 710, 732-33 (BIA 2009); see also Granados-Oseguera v. Gonzales, 464 F.3d 993, 998 (9th Cir. 2006) (holding counsel's performance deficient based in part on failure to file a timely petition for review); Ray v. Gonzales, 439 F.3d 582, 588 (9th Cir. 2006) (holding counsel's performance deficient based in part on failure to meet procedural requirements of two motions to reopen); Siong v. INS, 376 F.3d 1030, 1037 (9th Cir. 2004) ("Failing to file a timely notice of appeal is obvious ineffective assistance of counsel."). These errors are compounded by the irrelevant briefing submitted by Mr. Silverberg in this appeal.
The alien derives it from a series of Ninth Circuit cases that hold that the Board's failure to consider the alien's arguments because his lawyer did not file a brief (or did not appeal at all) establishes a presumption of prejudice. Granados-Oseguera v. Gonzales, 464 F.3d 993, 997 (9th Cir. 2006); Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006); Siong v. INS, 376 F.3d 1030, 1037 (9th Cir. 2004); Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir. 2004); Dearinger v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000). There was no failure by the Board in this case.
We review the denial of a motion to reopen for an abuse of discretion. See Granados-Oseguera v. Gonzales, 464 F.3d 993, 996 (9th Cir. 2006). The BIA denied Kumar's appeal from the IJ's denial of his asylum application on March 30, 2005.
The BIA did not err in finding that petitioner failed to establish that he had received ineffective assistance of counsel in his removal proceedings. See Granados-Oseguera v. Gonzales, 464 F.3d 993 (9th Cir. 2006). Nor did the BIA abuse its discretion in denying petitioner's request to remand to the Immigration Judge because petitioner presented no evidence that he is eligible for any form of relief from removal.
We lack jurisdiction to consider Singh's ineffective assistance of counsel claim regarding his first attorney's performance with respect to his 2002 motions because Singh failed to raise that issue before the BIA and thereby failed to exhaust his administrative remedies. See Granados-Oseguera v. Gonzales, 464 F.3d 993, 994 (9th Cir. 2006). The BIA did not abuse its discretion by denying Singh's 2005 motion to reopen because it exceeded the numerical limitations, see 8 C.F.R. § 1003.2(c)(3), and Singh failed to show that his motion was excepted from the numerical limitations, see 8 C.F.R. § 1003.2(c)(3)(i), because the record reflects that notice of the March 24, 1995 hearing was sent through certified mail to Singh's last known address, and Singh did not contend otherwise, see Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997) (per curiam) ("[N]otice by certified mail sent to an alien's last known address can be sufficient under the Act, even if no one signed for it.").
Although Kumar did not comply with the Lozada requirements, compliance is excused where the ineffective assistance is obvious. See Granados-Oseguera v. Gonzales, 464 F.3d 993, 998 (9th Cir. 2006). Villela's failure to file a timely application that Kumar entrusted to him for filing within one year of Kumar's entry into the United States clearly denied Kumar of his due process rights.