Bajah
Bajah v. Holder
Opinion
Lead Opinion
MEMORANDUM **
Mamoun Mohammed AI Bajah petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from the Immigration Judge’s order denying his motion to reopen proceedings conducted in absentia in 1993. We have jurisdiction pursuant to 8 U.S.C. § 1252 . Reviewing for abuse of discretion, Iturri-barria v. INS, 321 F.3d 889, 894 (9th Cir.2003), we deny the petition for review.
The BIA denied AI Bajah’s motion to reopen as untimely because it was not filed within the 180 day deadline. See 8 C.F.R. § 1003.23 (b)(4)(iii). AI Bajah contends that he is entitled to equitable tolling of the deadline due to ineffective assistance he received from an immigration consultant who was not an attorney. Specifically, AI Bajah states that the consultant advised him not to attend his 1993 immigration hearing and did not keep him apprised of the status of his case. AI Bajah states that he looked for the consultant later that year, but was unable to find him. He did not hire a lawyer to look into his immigration status until 2001.
Equitable tolling is available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the…
Dissenting Opinion
Pregerson, J.
dissenting:
I dissent. This is but one of a multitude of similar sad cases by which our government’s deportation of undocumented parents results in the deportation of their American-born citizen children, and effectively denies those children their birthrights. See Cerrillo-Perez v. INS, 809 F.2d 1419, 1426-27 (9th Cir.1987) (Requiring the government to conduct individualized analyses of hardships to U.S. citizen children). Our government’s conduct forces U.S. citizen children to accept de facto expulsion from their native land or give up their constitutionally protected right to remain with their parents. See, e.g., Moore v. City of E. Cleveland, 431 U.S. 494, 503-05 , 97 S.Ct. 1932 , 52 L.Ed.2d *997 581 (1977) (plurality opinion) (“Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”); Stanley v. Illinois, 405 U.S. 645, 651 , 92 S.Ct. 1208 , 81 L.Ed.2d 551 (1972) (recognizing that “[t]he integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment”).