Algarne

dissenting.

In the circumstances, I would not conclude the BIA abused its discretion.

MEMORANDUM **

Leonardo Chito Algarne, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying as untimely his motion to reopen deportation proceedings after the BIA affirmed an immigration judge’s denial of his request for suspension of deportation. Because the transitional rules apply, Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc), we have jurisdiction under 8 U.S.C. § 1105a(a). We review for abuse of discretion the denial of a motion to reopen and review de novo claims of due process violations. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). We grant the petition and remand.

The filing period for a motion to reopen is subject to equitable tolling. See Socop-Gonzalez, 272 F.3d at 1193 . Because the record demonstrates that Algarne exercised reasonable diligence by relying on false assurances from his former attorney that his appeal was still pending before this court, equitable tolling is warranted, and the BIA improperly denied Algarne’s motion as untimely. See Rodñguez-Lañz, 282 F.3d at 1224-25 (applying equitable tolling where counsel made false representations to…