Oscar Larin-Dominguez v. Eric Holder, Jr.

MEMORANDUM

Oscar Armando Larin-Dominguez, a citizen of El Salvador, appeals the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen his 2004 removal proceeding so that he can apply for cancellation of removal. Larin-Dominguez claims that: (1) he received ineffective assistance of counsel at his 2004 hearing; (2) his due process rights were violated when the Immigration Judge (“IJ”) failed to adequately advise him regarding his right to counsel; and (3) his waiver of appeal was not considered and intelligent. The BIA denied Larin-Dominguez’s motion on the grounds that he failed to establish prejudice and validly waived appeal of the removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We grant Larin-Dominguez’s petition and remand.

Larin-Dominguez’s motion to reopen was not filed within ninety days of the entry of his removal order as required by 8 U.S.C. § 1229a(c)(7)(C)(i) and 8 C.F.R. § 1008.2 (c)(2). However, he is entitled to equitable tolling of the filing deadline because of ineffective assistance of counsel. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1191-93 (9th Cir.2001) (noting that the filing period for a motion to reopen is subject to…