Kumar

MEMORANDUM **

Satish Kumar, Sarda Kumar, and San-deep Kumar, natives and citizens of Fiji, petition this court for review of a decision by the Board of Immigration Appeals (BIA) denying their “Sua Sponte Motion to Reopen” deportation proceedings. In this motion, the Kumars argued that ineffective assistance of former counsel constituted an exceptional circumstance that warranted equitable tolling of the time and numerical limitations on the filing of motions to reopen. In their brief to this court, the Kumars contend that the BIA *633 should have granted them motion because their prior counsel’s ineffective assistance deprived them of an opportunity to appeal the immigration judge’s denial of their asylum petition.

We lack jurisdiction to review the BIA’s refusal to exercise its sua sponte discretion to reopen. Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002). But because the BIA should have construed the Kumars’ misnamed request for relief as a motion to reopen, 1 we have jurisdiction under 8 U.S.C. § 1252 (b) to consider whether the BIA abused its discretion when it ruled that the Kumars were not entitled to equitable tolling based on their prior counsel’s ineffective…

dissenting:

In addition to finding that Mr. Smith signed a document on the Kumars’ behalf, the BIA found that, though the Kumars had been assured previously by their consultant that he would file an appeal on *634 their behalf, the Immigration and Naturalization Service notified Mr. Kumar on November 5, 2001 that he did not have an appeal pending before the BIA. (CAR 4.) The BIA also found that the Kumars contend (despite having received the INS notice in November 2001) that they first learned their appeal had been dismissed in September 2002, but they did not retain new counsel until almost two years later, in July 2003, after they received letters from the Department of Homeland Security ordering them to report for deportation to Fiji the following month. (CAR 5.)

On these facts (which the Kumars do not dispute), I do not find that the BIA erroneously found that the Kumars failed to exercise due diligence in pursuing their case. Therefore, the BIA did not abuse its discretion by refusing to grant the Kumars the benefit of equitable tolling. Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (“This court ... recognizes equitable tolling of deadlines and numerical limits on…