Jesus Del Toro Rivera v. Eric H. Holder Jr.

MEMORANDUM

Jesus Mario Del Toro Rivera (“Del Toro”) petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. In December 2007, Del Toro moved to reopen his March 2005 removal order on the ground that his prior attorney provided ineffective assistance. The BIA denied Del Toro’s motion as untimely and declined to toll the 90-day deadline. See 8 U.S.C. § 1229a(c)(7)(C)(I). We review for abuse of discretion the BIA’s denial of a motion to reopen. Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir.2007).

We equitably toll deadlines on motions to reopen based on ineffective assistance of counsel so long as the petitioner acts with the requisite due diligence. Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003). The BIA abused its discretion in this case when it focused on the diligence of Del Toro’s present counsel in uncovering his prior attorney’s ineffective assistance, rather than Del Toro’s diligence in continuously pursuing relief. See Ghahremani, 498 F.3d at 1000 . Like the petitioner in Ghahremani , Del Toro promptly retained new counsel and continuously pursued avenues of relief during the relevant time period. Id.; see also Avagyan…