Hao

MEMORANDUM *

Hui Hao petitions for review from the order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252 and grant the petition.

On May 15, 2006, Hao filed a motion to reopen before the BIA. The Government does not dispute Hao’s declaration that he filed the motion to reopen based on ineffective assistance of counsel within ninety days after conferring with newly appointed counsel.

The BIA denied the motion to reopen on January 17, 2007. It held that Hao failed to exercise due diligence in seeking reopening. It alternatively concluded that he had not shown that ineffective assistance of counsel prejudiced his case.

Seven months later, on August 17, 2007, this court published its decision in Ghahremani v. Gonzales, 498 F.3d 993 (9th Cir.2007). In Ghahremani , we held that the petitioner’s hiring of new counsel after his appeal was denied by the BIA “illustrates a paradigmatic case of due diligence.” Id. at 1000 . We also concluded that the fact that the petitioner’s retained counsel did not provide him with “vital information” regarding his prior counsel’s deficiencies “does not undermine Ghahremani’s…

dissenting:

I would hold that the BIA did not abuse its discretion in finding that Hao failed to exercise due diligence in pursuit of his rights and, in the alternative, that Hao has not demonstrated that he was prejudiced by ineffective assistance of counsel. Accordingly, I dissent.

I

As a general matter, a motion to reopen must be filed “within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). This deadline may be equitably tolled “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud or error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (emphasis added). Wholly aside from the question of whether Hao’s counsel committed a “deception, fraud, or error” sufficient to warrant tolling, I would affirm the BIA’s determination that Hao failed to exercise due diligence in discovering any such deficiency.

Here, the BIA affirmed the IJ’s denial of Hao’s request for asylum (and thereby triggered the start of the limitations period) on May 11, 2004. As the majority observes, he sought advice from a new lawyer,…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAR 16 2011

MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

HUI HAO, No. 07-70633

Petitioner, Agency No. A079-537-383

v.

MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 14, 2011 Pasadena, California

Before: ALARCMN, RYMER, and BYBEE, Circuit Judges.

Hui Hao petitions for review from the order of the Board of Immigration

Appeals ('BIA') denying his motion to reopen. We have jurisdiction pursuant to

8 U.S.C. y 1252 and grant the petition.

On May 15, 2006, Hao filed a motion to reopen before the BIA. The

Government does not dispute Hao's declaration that he filed the motion to reopen

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. based on ineffective assistance of counsel within ninety days after conferring with

newly appointed counsel.

The BIA denied the motion to reopen on…