Minney v. Immigration & Naturalization Service

51 F. App'x 262

Opinion

MEMORANDUM

Footnotes

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Stephen William Minney, a native and citizen of Great Britain, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) denial of his two motions to reopen deportation proceedings on the ground that counsel provided ineffective assistance in failing to inform the BIA that Minney had married a United States citizen. Because the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction pursuant to 8 U.S.C. § 1105a(a). We review for abuse of discretion the BIA’s denial of motions to reopen. Fajardo v. INS, 300 F.3d 1018, 1019 (9th Cir.2002). We grant the petition and remand.

Because Minney did not become aware of the harm stemming from his attorney’s misconduct until June 18, 1999, the statute of limitations for filing a motion to reopen was tolled until that date. See id. at 1022 (holding that limitation period for filing motion to reopen was tolled until petitioner was aware of the harm resulting from the deceptive practices of her representative). Accordingly, the motion to reopen filed on July 6, 1999, was timely because it was filed within the 90 day limitation period. See id.

The BIA properly exercised its discretion by construing Minney’s supplemental motion as a second motion to reopen. See Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir.1988) (holding that when the BIA is asked to consider new evidence after it has rendered a decision, the proper vehicle is a motion to reopen). In light of our disposition on the first motion to reopen, we remand the second motion to reopen to the BIA for its consideration.

We grant the petition and remand for the BIA to fully consider the merits of Minney’s motions to reopen.

PETITION GRANTED and 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.