Buligan

MEMORANDUM **

Marion Luzon Buligan, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen proceedings based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review the denial of a motion to reopen for abuse of discretion. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), amended by 404 F.3d 1105 (9th Cir.2005). We grant the petition for review and remand for further proceedings.

The BIA abused its discretion when it determined that Buligan was not entitled to equitable tolling of the motions deadline. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling is available to a petitioner who was the victim of attorney deception, fraud or error, and exercised due diligence in discovering' such circumstances). Buligan’s sworn declaration establishes that Gadda led her to believe that he was still able to represent her before this court and had filed a petition for review on her behalf, and also establishes that she realized Gadda had failed to do so only when she received her bag and baggage order from the agency. See…