Kulbir Singh v. Holder

MEMORANDUM

Kulbir Singh (Singh), a native and citizen of India, petitions for review of the order of the Board of Immigration Appeals (BIA) denying his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review a denial of a motion to reopen for abuse of discretion. SocopGonzalez v. INS, 272 F.3d 1176, 1187 (9th Cir.2001) (en banc). Questions of law and claims of due process violations in immigration proceedings are reviewed de novo. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). For the reasons below, we grant the petition for review and remand for further proceedings.

The BIA abused its discretion in rejecting Singh’s request that the ninety-day filing deadline be equitably tolled due to ineffective assistance of counsel. Equitable tolling is available 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). In 2002, while Singh’s appeal on his asylum claim was pending before the BIA, Singh obtained an approved 1-130 visa based on his marriage to a United States…