Martha Chavez v. Eric Holder, Jr.

MEMORANDUM

Martha Maciel Chavez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252 . We review de novo questions of law and for abuse of discretion the denial of a motion to reopen. Ghahremani v. Gonzales, 498 F.3d 993, 997-99 (9th Cir.2007). We grant the petition for review.

The BIA concluded that Chavez failed to demonstrate the due diligence required for equitable tolling, because she should have discovered the ineffective assistance of her former attorney, James Valinoti, when she received the BIA’s June 2, 2003, order dismissing her appeal as untimely filed. Chavez’s affidavit, however, alleges that she asked Valinoti to explain the BIA’s order because she does not speak English, that Valinoti did not inform her of the reason for the dismissal, and that he stated that he would file an appeal at the Ninth Circuit and that she would have to wait “a very long time.”

The BIA is under “an affirmative obligation to accept as true the facts stated in [Chavez’s] affidavit in ruling upon [her] motion to reopen…