Zhiming He v. Gonzales

Dissenting.

I cannot join the majority opinion. The majority concludes that He’s ineffective assistance claim was properly before the BIA, even though the BIA had already denied a motion to reopen on this ground and He failed to appeal that BIA’s ruling. I respectfully disagree.

Our cases recognize equitable tolling in cases of ineffective assistance of counsel. However, He and his current counsel, Wayland, had to have been aware of Portnoy’s ineffective assistance because He filed a motion to reopen on this ground in January of 2002. This motion was denied by the BIA on April 29, 2002. He never appealed this ruling, and therefore waived his right to an appeal. I am unaware of any case, besides this one, where this Court has applied the doctrine of equitable tolling after a litigant has already raised his claim.

He had an opportunity to assert his ineffective assistance of counsel claim, and he did so. The BIA rejected his argument as untimely. Because He did not appeal the BIA’s decision, we lack the jurisdiction to consider the validity of He’s claim three years later. See 8 U.S.C. § 1252 (b)(1); Stone v. INS, 514 U.S. 386 , 115 S.Ct. 1537 , 131 L.Ed.2d 465 (1995) (“Judicial…

MEMORANDUM *

Zhiming He petitions for review of the Board of Immigration Appeals’ denial of his motion to reopen his asylum claim. We review the BIA’s denial of a motion to reopen for abuse of discretion. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc).

We hold that the BIA abused its discretion in refusing to reopen He’s asylum application without addressing whether he received ineffective assistance of counsel and is therefore entitled to equitable tolling. 1 Our cases recognize equitable tolling of time and numerical limits on motions to reopen in cases of ineffective assistance of counsel. See, e.g., Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir.2003); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1223-26 (9th Cir.2002). To be entitled to equitable tolling, the alien must establish that he suffered from deception, fraud or error and exercised due diligence in discovering such circumstances. See Iturribarria, 321 F.3d at 897 .

It appears clear from the administrative record that He received ineffective assistance from his first attorney, Portnoy, at his asylum hearing and subsequent administrative appeals in violation of the Due Process Clause of the…