Robles-Doroteo

MEMORANDUM *

Marin Robles-Doroteo and Martha Heroína Gomez-Santos (collectively, RoblesDoroteo), natives and citizens of Peru, petition for review of the decision by the Board of Immigration Appeals (BIA) dismissing as untimely their appeal from denial of their requests for asylum and withholding of removal. We deny the petition.

We cannot say that the BIA abused its discretion in declining to accept RoblesDoroteo’s appeal on certification. 8 C.F.R. § 1003.1 (c); Shamsi v. INS, 998 F.2d 761 , 762 n. 2 (9th Cir.1993) (per curiam). Assuming that equitable tolling applies, Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir.2001) (en banc), the clock began to run once Robles-Doroteo and new counsel learned of the notary’s failure, cf. Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir.2003) (indicating that the limitation period begins to run when the petitioner first became aware of prior representative’s fraud); Socop-Gonzalez, 272 F.3d at 1194-97 (tolling the limitations period until the date that INS error was discovered, or with due diligence should have been discovered). Because an appeal should have been taken within thirty days of the immigration judge’s decision, 8 C.F.R. §…

concurring.

I concur in the result, but I write separately because I would base the decision on narrower grounds. The claim that Petitioner presented to the BIA was, in substance, a motion to reopen, and should have been treated as such. Motions to reopen must be filed with 90 days of the date of entry of a final administrative order of removal. 8 U.S.C. § 1229a(c)(6). With equitable tolling until Robles-Doroteo learned that their appeal had not been filed, they exercised due diligence by filing their ineffective assistance claim well within the 90 days allotted for fifing a motion to reopen. See Iturribarria v. INS, 321 F.3d 889 (9th Cir.2002); Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir.2001) (en banc) (holding that the BIA should have granted the petitioner equitable tolling, and with tolling his motion to reopen was timely). However, I concur on the narrow ground that Petitioners do not argue that the claim they presented to the BIA was a motion to reopen and stated at oral argument that the claim was a request for certification of their appeal. I agree that the Board did not abuse its discretion in refusing to certify Robles-Doroteo’s appeal to itself.

The BIA…