Adriano v. Gonzales

142 F. App'x 291

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 25, 2005
• Docket: Nos. 04-70141
• Status: Published

Opinion

MEMORANDUM

**

Elenita A. Adriano, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of her motion to reopen proceedings based on ineffective assistance of counsel and equitable tolling. We apply the transitional rules under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and we have jurisdiction under 8 U.S.C. § 1105a(a). We review for abuse of discretion the BIA’s denial of a motion to reopen, Fajardo v. INS, 300 F.3d 1018, 1019 (9th Cir. 2002), but review purely legal questions de novo, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We grant the petition for review.

The BIA abused its discretion when it denied petitioner’s motion to reopen because petitioner acted with due diligence in discovering that her case had been dismissed, in discovering misconduct by her prior attorney, in seeking out and retaining a new attorney, and in filing a motion to reopen. See Fajardo, 300 F.3d at 1019, 1022; see also Iturribarria v. INS, 321 F.3d 889, 897, 899 (9th Cir.2003). We therefore remand to the BIA for further proceedings consistent with this memorandum. See INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.