Reyes-Medina

MEMORANDUM

Fermín Reyes-Medina and his family, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen, and de novo purely legal questions. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We grant the petition for review and remand.

The BIA abused its discretion in finding that equitable tolling of the ninety-day deadline to file the motion to reopen was not warranted for lack of diligence, where petitioners acted with due diligence in discovering that former counsel failed to file an opening brief in this court. See Mejia-Hernandez v. Holder, 633 F.3d 818, 825-26 (9th Cir.2011); Iturribarria, 321 F.3d at 897 (equitable tolling is available where petitioner acts with due diligence in discovering deception, fraud, or error preventing timely filing).

With respect to petitioners’ claim of ineffective assistance of counsel based on conduct that occurred after the entry of a final order of removal, the BIA did not have the benefit of our intervening decision in Singh…