Gutierrez-Alcaraz

MEMORANDUM ****

Roberto Gutierrez-Alcaraz, a native and citizen of Mexico, petitions for review of the BIA’s denial of his motion to reopen as untimely. He contends the BIA committed legal error in deciding that Petitioner is not entitled to equitable tolling of the 90-day limitations period imposed by 8 C.F.R. § 1003.2 (c)(2). We grant the petition.

“This court ... recognizes equitable tolling of deadlines and numerical limits on motions to reopen ... during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003). The Government does not directly contest Petitioner’s contention that this test is satisfied by the deceptive conduct of Petitioner’s former counsel, Thomas Mix, after the BIA issued its decision denying Petitioner’s direct appeal. Nor does the Government contest the fact that, if equitable tolling were applied, Petitioner’s motion to reopen was timely.

Rather, the Government’s sole contention is that the BIA properly applied a third requirement that is not satisfied here: that “the…