                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SARBJIT SINGH,                              
                             Petitioner,            No. 03-72494
                    v.
                                                    Agency No.
                                                    A77-827-217
ALBERTO R. GONZALES,* Attorney
General,                                              OPINION
                     Respondent.
                                            
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                  Submitted February 9, 2005**
                    San Francisco, California

                         Filed July 29, 2005

   Before: J. Clifford Wallace, Johnnie B. Rawlinson, and
                Jay S. Bybee, Circuit Judges.

                     Opinion by Judge Bybee




  *Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as 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).

                                 8801
8804                 SINGH v. GONZALES


                        COUNSEL

Martin Resendez Guajardo, Law Office of Martin Resendez
Guajardo, San Francisco, California, for the petitioner.

Peter D. Keisler, David Bernal, S. Nicole Nardone, Office of
Immigration Litigation, Civil Division, United States Justice
Department, Washington, D.C., for the respondent.


                         OPINION

BYBEE, Circuit Judge:

  This case presents yet another due process challenge to the
Notice of Appeal and summary dismissal procedures
employed by the Board of Immigration Appeals (“BIA”).
                          SINGH v. GONZALES                  8805
   For more than thirty years, BIA regulations have authorized
summary dismissal of appeals for which the petitioner fails to
adequately specify the grounds for error. The regulations were
later amended to also authorize summary dismissal where the
petitioner indicates an intent to file a brief, but subsequently
fails either to file the brief or explain his failure to do so. In
this appeal, the petitioner claims that both regulations oper-
ated to violate his due process rights.

   While we have in the past criticized the potential for confu-
sion posed by the BIA’s strict specificity requirement, the
amended regulation authorizing dismissal for failure to file a
brief does not suffer from the same defects. Moreover, the
actions of petitioner’s counsel in this case persuade us that,
rather than a due process violation based on the BIA’s sum-
mary dismissal procedures, the petitioner has alleged a classic
case of ineffective assistance of counsel. Accordingly, we
deny petitioner’s due process claim based on the summary
dismissal, but remand to the BIA for further consideration of
his due process ineffective assistance of counsel claim.

                     I.    BACKGROUND

   Sarbjit Singh, a native and citizen of India, was charged as
removable on the ground that he had overstayed his visa.
Singh retained attorney Samuel Maina and applied for asy-
lum, withholding of removal and Convention Against Torture
relief. Each of Singh’s claims were rejected after a hearing in
which the immigration judge (“IJ”) found him not credible
and ordered his removal.

   With Maina’s assistance, Singh filed a Notice of Appeal
with the BIA using form EOIR-26. In the section requesting
the petitioner to “[s]tate in detail the reason(s) for [the]
appeal,” Maina wrote the following: “IJ erred in finding
respondent was not credible and failed to carry his burden.”
Immediately above Maina’s statement, the form contained the
following conspicuous admonition: “WARNING: The failure
8806                   SINGH v. GONZALES
to specify the factual or legal basis for the appeal may lead to
summary dismissal without further notice unless you give
specific details in a timely, separate written brief or statement
filed with the board.” Maina checked the box on the form,
termed “Item #6,” indicating that he intended to file a separate
written brief to comply with the regulation. Directly below
this item, another conspicuous instruction read: “WARNING:
Your appeal may be summarily dismissed if you indicate in
Item #6 that you will file a separate written brief or statement
and, within the time set for filing, you fail to file the brief or
statement and do not reasonably explain such failure.” There-
after, by a separate mailing, the BIA instructed the petitioner
that his brief would be due on or before April 16, 2001. Maina
never filed a brief.

   Almost a year after the briefing deadline passed, the BIA
summarily dismissed Singh’s appeal pursuant to 8 C.F.R.
§ 3.1(d)(2)(i) (2001). The BIA offered two grounds for its
decision:

       Pursuant to our regulations, an appeal may be dis-
    missed where a party indicates “that he or she will
    file a brief or statement in support of the appeal and,
    thereafter, does not file such a brief or statement, or
    reasonably explain his or her failure to do so, within
    the time set for filing. . . .” 8 C.F.R. § 3.1(d)(2)(i)(D)
    (2001). The Notice of Appeal explicitly warned the
    respondent of the regulation, and a briefing schedule
    indicating that the respondent’s brief was due on
    April 16, 2001, was mailed to the respondent. To
    date, the respondent has not submitted a brief or
    offered an explanation for the failure to do so. We
    thus find that summary dismissal is appropriate
    under 8 C.F.R. § 3.1(d)(2)(i)(D).

      In addition, the respondent provided general state-
    ments alleging error, but did not specifically identify
    those errors. The Board may summarily dismiss an
                          SINGH v. GONZALES                         8807
      appeal when the appealing party fails to specify rea-
      sons for the appeal. See 8 C.F.R. § 3.1(d)(2)(i)(A).

In re Sarbjit Singh, A77 827 217, at 1-2 (BIA, March 18,
2002) (citation and footnote omitted). In a footnote, the Board
added: “We find that this case is distinguishable from Padilla-
Agustin v. INS, 21 F.3d 970 (9th Cir. 1994). In the instant
case, the record reflects that the respondent was placed on
notice that the appeal could be summarily dismissed for fail-
ure to timely submit a promised brief or statement.” Id. at 1
& n.1 (citing 8 C.F.R. § 3.1(d)(2)(i)(D)).1

   Approximately one year after the summary dismissal was
issued, Singh retained new counsel and moved to reopen his
proceedings, arguing that the summary dismissal violated his
due process rights and that the 90 day deadline for filing a
motion to reopen should be equitably tolled because of his
former counsel’s ineffective assistance.2 In a per curiam order,
the Board rejected the motion as untimely filed without
addressing the equitable tolling argument. Singh timely peti-
tioned this court to review the BIA’s decision.

   In the petition for review that we now consider, Singh reas-
serts the arguments raised in his motion to reopen; namely,
that the BIA’s summary dismissal violated his due process
rights and that his former counsel’s ineffective assistance ren-
dered his motion to reopen subject to equitable tolling.
  1
   This regulation is now codified at 8 C.F.R. § 1003.1(d)(2)(i). See 68
Fed. Reg. 9824 (Feb. 28, 2003).
  2
    Pursuant to 8 C.F.R. § 1003.2(c)(2), a motion to reopen in any case
previously the subject of a final decision by the BIA generally must be
filed no later than 90 days after the date of that decision. Thus, Singh’s
motion was due on or before June 17, 2002. The Board did not receive the
motion until February 28, 2003.
8808                   SINGH v. GONZALES
               II.   STANDARD OF REVIEW

   The regulation at issue here, 8 C.F.R. § 3.1(d)(2)(i) (2001),
states that the BIA “may” summarily dismiss an appeal for
failure to state specific reasons or file a promised brief. Con-
sequently, the Board’s decision whether to dismiss is discre-
tionary. Dismissal for failure to comply with this regulation
is akin to dismissal in a civil case for failure to prosecute,
which we review for abuse of discretion. See, e.g., Link v.
Wabash R. Co., 370 U.S. 626, 633 (1962) (“Whether such an
order can stand on appeal depends not on power but on
whether it was within the permissible range of the court’s dis-
cretion.”); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th
Cir. 1986). Accordingly, we will not reverse a dismissal under
8 C.F.R. § 3.1(d)(2)(i) unless the Board has abused its discre-
tion.

   However, the question squarely presented in this case is
whether the summary dismissal violated Singh’s due process
rights. That question is a pure question of law which we
review de novo. See Lopez v. INS., 184 F.3d 1097, 1099 (9th
Cir. 1999) (pure questions of law raised in a petition for
review are reviewed de novo). Finally, we review the denial
of a motion to reopen for abuse of discretion. See Shaar v.
INS, 141 F.3d 953, 955 (9th Cir. 1998).

                      III.   DISCUSSION

A.     Summary Dismissal Procedures

   [1] BIA regulations provide for summary dismissal of an
appeal where the party concerned either fails to adequately
specify the reasons for the appeal, or fails to file a brief after
indicating an intent to do so. The particular regulation at issue
in this case read as follows:

     (i) Standards. The Board may summarily dismiss
     any appeal or portion of any appeal in any case in
     which:
                       SINGH v. GONZALES                       8809
    (A) The party concerned fails to specify the reasons
    for the appeal on Form EOIR-26 or Form EOIR-29
    (Notices of Appeal) or other document filed there-
    with; [or]

    ...

    (D) The party concerned indicates on Form EOIR-
    26 or Form EOIR-29 that he or she will file a brief
    or statement in support of the appeal and, thereafter,
    does not file such brief or statement, or reasonably
    explain his or her failure to do so, within the time set
    for filing. . . .

8 C.F.R. § 3.1(d)(2)(i)(A), (D) (2001). The BIA referenced
both provisions — subpart (A) and subpart (D) — in support
of its order summarily dismissing Singh’s appeal.

   Prior to an amendment, effective January 13, 1994, BIA
regulations did not contain a “briefing sanction” providing
that an appeal can be summarily dismissed if the petitioner
indicates an intent to file a brief and then fails to do so. How-
ever, BIA regulations have long contained a “specificity sanc-
tion,” providing for summary dismissal where the party fails
to specify the grounds for appeal on the Notice of Appeal
form or in a separate document. See Matter of Holguin, 13 I
& N Dec. 423, 425-26 (BIA 1969).

   Singh concedes that his reasons for appeal were not spe-
cific and that no brief was filed as promised by his former
counsel. He argues, however, that both the specificity and
briefing sanctions provided for in BIA regulations operated to
deprive him of due process, as guaranteed by the Fifth
Amendment to the United States Constitution.

   Singh’s argument is not a novel one. Our court has grap-
pled with the BIA’s summary dismissal procedures for nearly
8810                      SINGH v. GONZALES
a quarter-century. Thus, a brief examination of our prior cases
analyzing these procedures is useful.

  1.     The Specificity Sanction

  In Matter of Valencia, the BIA outlined the specificity
required to avoid summary dismissal:

       It is . . . insufficient to merely assert that the immi-
       gration judge improperly found that deportability
       had been established or denied. . . . Where eligibility
       for discretionary relief is at issue, it should be stated
       whether the error relates to grounds of statutory eli-
       gibility or to the exercise of discretion. Furthermore,
       it should be clear whether the alleged impropriety in
       the decision lies with the immigration judge’s inter-
       pretation of the facts or his application of legal stan-
       dards. Where a question of law is presented,
       supporting authority should be included, and where
       the dispute is on the facts, there should be a discus-
       sion of the particular details contested.

19 I. & N. Dec. 354, 355 (BIA 1986).

   “The purpose of the BIA’s strict specificity requirement is
to ensure that the BIA is adequately apprised of the issues on
appeal so that the BIA is not left to ‘search through the record
and speculate on what possible errors the [petitioner]
claims.’ ” Rojas-Garcia v. Ashcroft, 339 F.3d 814, 820 (9th
Cir. 2003) (quoting Matter of Valencia, 19 I. & N. Dec. at
355) (alteration in original). “If the BIA was forced to deci-
pher general statements of error, unsupported by specific fac-
tual or legal references, the BIA would have to spend time
and resources reconstructing the proceedings before the IJ and
building the petitioner’s legal case, in some instances only to
conclude that the appeal was utterly without merit.” Id. at 820
(citation omitted). On the other hand, “when the BIA receives
ample specific advice about the reasons for an appeal, the
                      SINGH v. GONZALES                    8811
BIA can deal promptly with appeals and focus resources on
nonfrivolous appeals to reach a correct resolution.” Id.

   We have, on several occasions, commented on the impor-
tance of the specificity requirement and the extent of specific-
ity required. See, e.g., id. at 819-20; Casas-Chavez v. INS, 300
F.3d 1088, 1089-90 (9th Cir. 2002); Toquero v. INS, 956 F.2d
193, 195 (9th Cir. 1992); Escobar-Ramos v. INS, 927 F.2d
482 (9th Cir. 1991); Martinez-Zelaya v. INS, 841 F.2d 294
(9th Cir. 1988); Reyes-Mendoza v. INS, 774 F.2d 1364 (9th
Cir. 1985). See also Athehortua-Vanegas v. INS, 876 F.2d 238
(1st Cir. 1989); Medrano-Villatoro v. INS, 866 F.2d 132 (5th
Cir. 1989); Bonne-Annee v. INS, 810 F.2d 1077 (11th Cir.
1987); Townsend v. INS, 799 F.2d 179 (5th Cir. 1986).

   In Reyes-Mendoza we approved the BIA’s strict interpreta-
tion, reasoning that the Notice of Appeal form must “inform
the BIA of what aspects of the IJ’s decision were allegedly
incorrect and why.” 774 F.2d at 1364-65 (concluding sum-
mary dismissal was appropriate because a six-word statement
on the Notice of Appeal form inadequately informed the BIA
of the grounds for appeal). See also Martinez-Zelaya, 841
F.2d at 296. In Toquero we confirmed this approval, finding
a description insufficient, and summary dismissal appropriate,
where it merely contained “generalized and conclusory state-
ment[s] about the proceedings before the IJ” and failed to
specify “the particular details contested.” 956 F.2d at 195
(citations omitted); accord Townsend, 799 F.2d at 182. In
Escobar-Ramos we similarly observed that “summary dis-
missal by the BIA is appropriate if an alien submits no sepa-
rate written brief or statement to the BIA and inadequately
informs the BIA of what aspects of the IJ’s decision were
allegedly incorrect and why.” 927 F.2d at 484 (quoting
Martinez-Zelaya, 841 F.2d at 296).

   Yet, even in the context of approving the BIA’s summary
dismissal policy in Toquero and Escobar-Ramos, we
expressed some discomfort with the potential inadequacy of
8812                   SINGH v. GONZALES
the warnings contained on the BIA’s Notice of Appeal form.
For example, in Toquero we stated:

    [W]e believe the instructions on the Notice of
    Appeal are less than clear. For example . . . . [t]he
    instructions do not set out . . . the specificity stan-
    dard used by the BIA in deciding to summarily dis-
    miss an appeal . . . . In fact the form suggests that the
    alien need not go into much detail by providing only
    a three-inch space on which to state his claim of
    error. Moreover, the instructions indicate that the
    party is not required to file a brief, yet the BIA has
    developed the practice of considering the written
    brief in conjunction with the Notice of Appeal in
    determining whether summary dismissal is appropri-
    ate.

956 F.2d at 197 (citation omitted). Likewise, in Escobar-
Ramos we observed that the BIA’s Notice of Appeal form

    contains the potential for misleading the unwary. It
    requires the appellant to “Briefly state reasons for
    this appeal.” . . . The instructions on the reverse side
    of the form provide that “The Board may deny oral
    argument and summarily dismiss any appeal in any
    deportation proceeding in which . . . the party con-
    cerned fails to specify the reasons for his/her appeal
    on the reverse side of the form.” Appellants are
    informed that “a brief in support of or in opposition
    to an appeal is not required.” The form then supplies
    less than three inches of space to provide these rea-
    sons for the appeal and does not invite the use of an
    additional piece of paper.

927 F.2d at 484. Noting the strict specificity requirements
outlined by the BIA in Matter of Valencia, 19 I. & N. Dec.
at 355, we found “no indication on the face of [the BIA’s
Notice of Appeal form] or in the instructions on the reverse
                      SINGH v. GONZALES                        8813
side as to the need for this level of specificity.” Escobar-
Ramos, 927 F.2d at 484.

   However, neither case turned on the “clarity of the [Notice
of Appeal form] instructions” alone, but instead depended
upon “an inquiry into the actions taken by Petitioner’s coun-
sel.” Toquero, 956 F.2d at 196-97. In Escobar-Ramos this
inquiry revealed extraordinary circumstances — namely, the
agency’s delay in tendering transcripts, combined with the
collapsed roof and flooding of counsel’s law office — suffi-
cient to excuse counsel’s failure to file a brief with the BIA
or to request an extension of time. 927 F.2d at 484-85. On the
contrary, in Toquero nothing approaching the “extraordinary”
was offered. 956 F.2d at 196. See also Escobar-Ramos, 927
F.2d at 486 (noting that in those cases where we upheld the
BIA’s summary dismissal “no explanation was offered for the
failure to file briefs with the BIA”). Instead, counsel for the
petitioner indicated an intention, on the Notice of Appeal
form, to file a supporting brief, and he quite simply “failed to
follow through with this intention.” Toquero, 956 F.2d at 196.
When presented with these facts, we held that

    counsel had a responsibility to at least file a brief
    stating why the Notice was adequate, or explaining
    the reasons for appeal. When counsel for Petitioner
    did not submit a brief as promised, and then did not
    respond to the government’s brief, the BIA could
    reasonably assume that Petitioner had either aban-
    doned his appeal or could not explain the deficiency.
    Petitioner and his counsel were on notice that the
    BIA would exercise its power to summarily dismiss
    the appeal. Thus, counsel’s failure to act justified the
    BIA’s actions, and weakens any contention that the
    procedures used in this case violated due process.

Id. at 196-97.

  In Padilla-Agustin, however, our concerns, heretofore
merely hypothetical, became concrete, and we had occasion
8814                  SINGH v. GONZALES
to give teeth to our prior grumblings. 21 F.3d at 977 (“This
case is the one described in Toquero: it turns on the ‘clarity
of the instructions’ alone.”). In that case the petitioner,
Padilla, a 51-year-old native and citizen of Guatemala,
entered the United States without inspection and was subse-
quently ordered to show cause why he should not be deported
under former Section 241(a)(2) of the Immigration and
Nationality Act. Proceeding pro se and speaking no English,
Padilla conceded his deportability, designated Guatemala as
the country for his deportation, and applied for asylum, with-
holding of deportation and voluntary departure. The IJ denied
his claims in toto. Id. at 972. Still representing himself,
Padilla filed a Notice of Appeal using form EOIR-26; he nei-
ther attached a supporting brief nor checked the box on the
Notice of Appeal form indicating an intent to do so at a later
date. Instead, on the form, he specified the grounds for appeal
as follows: “I request my Political Asylum request be
accepted because I fled my country in order to save myself
because the Political situation I was persecuted. Now if I
return I’ll be—mistreated or killed I need the chance to stay
in this country until the situation change in my country.” Id.
The BIA summarily dismissed Padilla’s appeal, reasoning that
Padilla “in no meaningful way identified the basis for the
appeal . . . [and] failed to specify any respect in which the
immigration judge’s decision [was] incorrect.” Id. (alterna-
tions in original).

   [2] We granted Padilla’s petition for review, concluding
that Padilla “did not receive adequate notice of the potential
for summary dismissal of his appeal.” Id. at 974. Recalling
our prior warnings in Toquero and Escobar-Ramos, we again
decried the fact that the form utilized by the BIA enjoined the
immigrant to brevity without providing sufficient notice to the
unschooled observer of the possibility of dismissal. We stated,
“[p]articularly when the alien is representing himself and has
language difficulties, as is so often the case and is the case
here, a high degree of clarity should be a part of the process
accorded.” Id. at 976 (emphasis in original). Accordingly, we
                       SINGH v. GONZALES                     8815
held that “the concatenation of EOIR-26, the BIA’s strict
Notice of Appeal requirements, and the failure to give any
advance warning before an appeal is dismissed, can result in
a violation of the due process rights of the alien” and “[i]t did
so here.” Id. at 977 (emphasis added).

   We have on other occasions held that the BIA’s strict speci-
ficity requirement, when combined with BIA regulations per-
mitting summary dismissal without notice, can operate to
violate an alien’s due process rights. Each case involved spe-
cial circumstances, not present in the instant case, which sug-
gested that a “high degree of clarity” was required. Castillo-
Manzanarez v. INS, 65 F.3d 793, 796 (9th Cir. 1995) (involv-
ing a petitioner with language difficulties). See also Vargas-
Garcia v. INS, 287 F.3d 882, 885 (9th Cir. 2002) (involving
a pro se petitioner).

   However, in Singh’s case, the BIA did not rely solely on
the specificity sanction. Rather, the BIA’s decision summarily
dismissing Singh’s appeal relied primarily on Singh’s failure
to file a brief after indicating an intent to do so. See In re
Sarbjit Singh, A77 827 217, at 1-2 (BIA, March 18, 2002)
(citing 8 C.F.R. § 3.1(d)(2)(i)(D) (2001), and stating, “To
date, the respondent has not submitted a brief or offered an
explanation for the failure to do so.”).

  2.   The Briefing Sanction

   [3] We have never considered whether the BIA’s summary
dismissal procedures violate due process in light of the
amended regulation, 8 C.F.R. § 3.1(d)(2)(i)(D) (2001), that
specifically permits the BIA to dismiss an appeal summarily
when a petitioner fails to timely file a brief after indicating an
intent to do so. See Rojas-Garcia, 339 F.3d at 821; Casas-
Chavez, 300 F.3d at 1090 n.2; Castillo-Manzanarez, 65 F.3d
at 796 n.3.

   [4] We observe, however, that the same potential for confu-
sion that continues to plague dismissal for lack of specificity
8816                    SINGH v. GONZALES
does not necessarily exist in this context. In each case where
we have either bemoaned the potential for confusion or found
a due process violation, the ambiguity stemmed from the
BIA’s strict specificity requirement, the extent of which was
not adequately represented on the face of the BIA’s Notice of
Appeal forms. See, e.g., Vargas-Garcia, 287 F.3d at 885
(observing that “EOIR-26 still fails to tell the alien, especially
a pro se alien . . . that what is really required is what amounts
to a true legal brief complete with reference to authorities—
statutes, regulations, cases, etc.”); Castillo-Manzanarez, 65
F.3d at 796 (stressing the importance of clear instructions);
Padilla-Agustin, 21 F.3d at 976 (emphasizing that
“[p]articularly when the alien is representing himself and has
language difficulties, as is so often the case and is the case
here, a high degree of clarity should be a part of the process
accorded”) (emphasis in original); Toquero, 956 F.2d at 197
(observing that “[t]he instructions do not set out . . . the speci-
ficity standard used by the BIA in deciding to summarily dis-
miss an appeal . . . . [rather] the form suggests that the alien
need not go into much detail by providing only a three-inch
space on which to state his claim of error”); Escobar-Ramos,
927 F.2d at 484 (finding “no indication on the face of [the
BIA’s Notice of Appeal form] or in the instructions on the
reverse side as to the need for this level of specificity”). On
the contrary, the amended regulation merely permits the BIA
to summarily dismiss an appeal if a brief is promised and later
not filed. The Notice of Appeal form quite plainly instructs:
“Your appeal may be summarily dismissed if you indicate . . .
that you will file a separate written brief . . . and . . . you fail
to file the brief . . . and do not reasonably explain such fail-
ure.”

   [5] On the facts of this case, we conclude that neither the
briefing, nor the specificity sanctions operated to deprive
Singh of due process.

B.     Due Process

   While perhaps wanting for a certain precision and consis-
tency, our prior cases have divided challenges to the BIA’s
                         SINGH v. GONZALES                        8817
specificity sanction largely into two distinct groupings: (1)
those presenting a cognizable due process violation based on
deficiencies in the BIA’s summary dismissal procedures, see,
e.g., Padilla-Agustin, 21 F.3d at 977; Vargas-Garcia, 287
F.3d at 886, and (2) those presenting a claim which is better
characterized as ineffective assistance of counsel. See, e.g.,
Rojas-Garcia, 339 F.3d at 822; Toquero, 956 F.2d at 196. The
instant appeal is quite simply of the latter breed: it turns not
on the clarity of the instructions provided, but rather on the
actions and expressed intentions of Singh’s counsel.

   [6] Even in the context of condemning the potential inade-
quacy of the BIA’s notice procedures in Toquero we found
“an inquiry into the actions taken by Petitioner’s counsel”
warranted. 956 F.2d at 196. After so inquiring we found no
due process violation, but held that “counsel’s failure to act
justified the BIA’s [summary dismissal], and weaken[ed] any
contention that the procedures used . . . violated due process.”
Id. at 196-97. Similarly, in Rojas-Garcia, we observed that “it
is not correct to assess whether [the petitioner] had adequate
notice without at least considering the actions and expressed
intentions of his counsel.” 339 F.3d at 822.

   [7] Where “the actions of [petitioner’s] counsel make abso-
lutely clear that the failure . . . to file a brief . . . was due, plain
and simple, to . . . counsel’s admitted error and oversight,” we
have consistently held that the failure cannot be attributed to
any deficiency in the BIA’s notice procedures. Id. Rather than
a due process violation based on inadequate notice, the facts
alleged by Singh present a classic instance of ineffective
assistance of counsel. A contrary rule would permit a peti-
tioner to recast, as a due process violation, an ineffective
assistance of counsel claim that is otherwise barred by Matter
of Lozada, 19 I & N Dec. 637 (BIA 1988), or unexhausted
before the BIA. We decline to pave the way for such redefini-
tion in this case. Rather, we are persuaded that, in the ordinary
case, facts such as those alleged by Singh give rise, not to a
claim that the BIA’s summary dismissal procedures denied
8818                      SINGH v. GONZALES
the petitioner due process, but instead to a claim that he was
denied effective assistance by his counsel. Accordingly, we
hold that Singh has failed to demonstrate a due process viola-
tion as a result of the BIA’s specificity sanction.

   [8] In addition, we conclude that Singh’s due process rights
were not infringed by virtue of the BIA’s briefing sanction.
This conclusion follows logically from our precedents exam-
ining the regulatory precursors to the instant regulation.
Reviewing a regulation that permitted the BIA to summarily
dismiss an appeal if the grounds for appeal were either not
clearly set forth on the Notice of Appeal form or in a separate
brief, we held that counsel had a responsibility, after receiving
the government’s motion to dismiss, “to at least file a brief
stating why the Notice was adequate, or explaining the rea-
sons for appeal.” Toquero, 956 F.2d at 196.3 The same con-
clusion is even more obvious in this case, where the
regulation at issue expressly permits the BIA to dismiss an
appeal if the “party concerned indicates . . . that he or she will
file a brief . . . and, thereafter, does not file such brief . . . or
reasonably explain his or her failure to do so.” 8 C.F.R.
§ 3.1(d)(2)(i)(D) (2001). After the BIA mailed a briefing
schedule specifying the time frame in which Singh’s former
counsel was required to file his promised brief, counsel simi-
larly had a responsibility either to file the brief, to request an
extension, or to at least explain his failure. Counsel’s failure
to take any action whatsoever for nearly a year justified the
BIA’s summary dismissal. The dismissal did not infringe
upon Singh’s due process rights any more than a dismissal for
  3
    The regulation at issue in Toquero permitted the BIA to “summarily
dismiss any appeal in any case in which . . . the party concerned fails to
specify the reasons for his appeal on Form I-290A (Notice of Appeal) . . .”
or in a separate written brief filed with the BIA. 956 F.2d at 194 & n.2.
In its order dismissing the appeal, the BIA stated: “No brief in support of
[Toquero’s] appeal has been filed. Moreover, counsel for [Toquero] has
failed to state specific reasons for the appeal in the Notice of Appeal
(Form I-290A) and therefore has failed to identify in a meaningful manner
the basis of the . . . appeal.” Id. at 194 (alterations in original).
                       SINGH v. GONZALES                      8819
failure to prosecute infringes upon the due process rights of
a counseled litigant. As the Supreme Court noted in that con-
text,

     Petitioner voluntarily chose this attorney as his rep-
     resentative in the action, and he cannot now avoid
     the consequences of the acts or omissions of this
     freely selected agent. Any other notion would be
     wholly inconsistent with our system of representa-
     tive litigation, in which each party is deemed bound
     by the acts of his lawyer-agent and is considered to
     have “notice of all facts, notice of which can be
     charged upon the attorney.”

Link, 370 U.S. at 633-34 (citing Smith v. Ayer, 101 U.S. 320,
326 (1879)).

   Accordingly, we hold that Singh has not established that
the BIA’s regulations — authorizing summary dismissal for
failure to either file a brief or specify the grounds for appeal
— violated his due process rights. Rather, the facts alleged by
Singh present a classic case of ineffective assistance of coun-
sel.

C.   Ineffective Assistance

   [9] Singh argues, in addition, that his former counsel’s inef-
fective assistance caused him to lose the opportunity either to
perfect his appeal or to file a timely motion to reopen. In par-
ticular, he argues that the limitations period applicable to
motions to reopen was subject to equitable tolling, and that
the BIA erred in not ruling on this argument before rejecting
his motion as untimely filed. In light of the BIA’s unex-
plained failure to address this argument we believe that
remand for additional investigation or explanation is appropri-
ate. See, e.g., INS v. Ventura, 537 U.S. 12, 16 (2002).
8820                  SINGH v. GONZALES
                    IV.   CONCLUSION

   For the foregoing reasons, Singh’s due process claim,
premised on the inadequacy of the BIA’s notice procedures,
is hereby denied. The case is remanded to the BIA to consider
whether any or all of the deadlines applicable to his appeal are
subject to equitable tolling in light of the ineffective assis-
tance allegedly provided by Singh’s former counsel.

 PETITION DENIED IN PART, GRANTED IN PART
AND REMANDED.
