Deocariza

MEMORANDUM **

Joseph Castillo Deocariza (“Deocariza”) seeks review of a December 31, 2002 Board disposition denying as time-barred Deocariza’s July 22, 2002 motion to reopen.

Deocariza’s failure to timely file was excused by his attorney’s defective performance that is plainly manifest on the face of the administrative record. An attorney’s failure to execute simple ministerial tasks rises to the level of a due process violation. Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir.2000). Here, Deocariza was deprived due process by his attorney’s hapless effort to file what would have been a meritorious application for adjustment of status.

Similarly, the deficient performance of Deocariza’s counsel constitutes an exceptional circumstance forgiving his failure to timely depart. See Varela v. INS, 204 F.3d 1237 , 1240 n. 6 (9th Cir.2000). Deocariza’s first lawyer neglected to inform Deocariza that his appeal had been denied, and his second lawyer failed to discover that the appeal had been denied until after the thirty days had elapsed. Consequently, Deocariza had no knowledge that his period for voluntary departure had begun to run until after it had elapsed. Deocariza…