Rivera
Rivera v. Gonzales
Opinion
Lead Opinion
MEMORANDUM **
Juan Antonio Rivera petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming without opinion an immigration judge’s (“IJ”) denial of his motion to reopen in absentia deportation proceedings. We have jurisdiction under 8 U.S.C. § 1105a(a), as amended by § 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”). See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.1997). Because the BIA affirmed the IJ’s decision without opinion, we review the IJ’s decision as the final agency decision. See Fajardo v. INS, 300 F.3d 1018 , 1019 n. 1 (9th Cir.2002). We review for abuse of discretion the IJ’s denial of Rivera’s motion to reopen. See id. at 1019 . We grant Rivera’s petition for review and remand for further proceedings.
In Rivera’s September 12, 2002 motion to reopen, which was the second motion to reopen that he filed, Rivera alleged that he failed to attend his deportation hearing because of ineffective assistance of counsel (“IAC”) by a self-proclaimed immigration law expert. Rivera also alleged that he failed to file a timely and adequately supported first motion to reopen because of IAC by another…
Dissenting Opinion
Kleinfeld, J.
dissenting:
I respectfully dissent.
Under 8 C.F.R. § 1003.23 (b)(4)(iii)(A)(l), a petitioner who demonstrates “exceptional circumstances” may file a motion to reopen up to 180 days after the entry of an order of removal. Rivera’s motion was filed 2015 days after entry of the order of removal, and 955 days after the denial of his prior motion to reopen.
The IJ properly acknowledged that “the time limitations on motions to reopen may be equitably tolled in cases where ‘despite all due diligence, [the respondent] is unable to obtain vital information bearing on the existence of the claim.’ ” 5 And the IJ properly noted that “this includes situations where the alien’s lack of awareness results from fraud by a third party or the ineffective assistance of counsel.” 6 However, the IJ also gave a suitable reason for denying equitable tolling in this case:
This vitiated Rivera’s equitable tolling claim. Tolling applies “where ... despite all due diligence, [the party invoking equitable tolling] is unable to obtain vital information bearing on the existence of the claim[,]” 7 including “aware[ness] of the harm resulting from [alleged] misconduct.”