Miguel Angel Iturribarria v. Immigration and Naturalization Service

Miguel Angel Iturribarria petitions this court for review of the Board of Immigration Appeals’ (BIA) denial as untimely of his motion to reopen deportation proceedings, so as to permit the filing of an application for suspension of deportation under former Immigration and Nationality Act (INA) § 244. He alleges that the BIA violated due process by deeming his motion to reopen a motion to reconsider, in violation of applicable Immigration and Naturalization Service (INS) regulations. Mr. Iturribarria further alleges that his former counsel was ineffective, and that he is therefore entitled to equitable tolling sufficient to convert his untimely motion to reopen into a timely one.

We agree with Mr. Iturribarria that the BIA misapplied its own regulations when it classified his motion alleging ineffective assistance of counsel as a motion to reconsider rather than a motion to reopen. Where the facts surrounding allegedly ineffective representation by counsel were unavailable to the petitioner at an earlier stage of the administrative process, motions before the BIA based on claims of ineffective assistance of counsel are properly deemed motions to reopen. By misapplying its…