Calderon-Huerta

MEMORANDUM **

Juan Manual Calderón-Huerta, a native and citizen of Mexico, petitions for review of the Board of Immigration’s (BIA) denial of his motion to reopen. In denying Calderon-Huerta’s petition as untimely under 8 C.F.R. § 3.2 , the BIA rejected his equitable tolling argument, which was based on the alleged ineffective assistance of his attorney and a subsequently hired paralegal. As the parties are familiar with the facts, procedural history, and arguments, we will not recount them here. We grant the petition and remand the case to the BIA.

We “recognize[ ] equitable tolling of deadlines and numerical limits on motions to reopen or reconsider during periods when a petitioner is prevented from filing *83 because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003). “Where the ineffective performance was that of an actual attorney and the attorney engaged in fraudulent activity causing an essential action in her Ghent’s case to be undertaken ineffectively, out of time, or not at all, equitable tolling is available.” Id. at 898 . This standard…