NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE RAMIRO-RAMIREZ, No. 20-71154 Petitioner, Agency No. A093-161-151 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 17, 2021** Pasadena, California Before: WARDLAW, PARKER,*** and HURWITZ, Circuit Judges. Jose Ramiro-Ramirez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (BIA) denial of his motion to reopen * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review. 1. The BIA correctly found Ramiro-Ramirez’s motion to reopen untimely. Although the motion to reopen was due “within 90 days of the date of entry of a final administrative order of removal,” see 8 U.S.C. § 1229a(c)(7)(C)(i), he filed the motion over three years after that date. 2. The BIA abused its discretion in concluding that Ramiro-Ramirez was not entitled to equitable tolling. Although Ramiro-Ramirez did not use the phrase “equitable tolling” in his motion to reopen, he nonetheless adequately raised the issue before the BIA by pleading facts “needed to support an equitable tolling argument.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1183–84 (9th Cir. 2001) (en banc) (overruled on other grounds by Smith v. Davis, 953 F.3d 582, 599 (9th Cir. 2020) (en banc)). The BIA correctly recognized that equitable tolling may be based on ineffective assistance of counsel. See Iturribarria v. INS, 321 F.3d 889, 897–98 (9th Cir. 2003). However, the BIA abused its discretion by finding that Ramiro- Ramirez failed to act with due diligence in discovering the deception, fraud, or error that was the basis of his motion. See Id. at 897. Ramiro-Ramirez based his motion to reopen on his former attorney’s failure to timely file his initial application for relief and to inform him of this mistake, and within less than a 2 month of the dismissal of his first appeal, Ramiro-Ramirez obtained a new attorney and filed a motion to reopen, demonstrating due diligence. Cf. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1225–26 (9th Cir. 2002) (petitioner acted with due diligence when petitioner obtained new counsel and filed a motion to reopen within a month of the appeal’s denial). Ramiro-Ramirez also demonstrated that he was prevented from timely filing his motion due to prior counsel’s ineffectiveness. See Singh v. Holder, 658 F.3d 879, 885 (9th Cir. 2011). His former attorney failed to timely file his initial applications for relief, missed an early hearing, failed to correct his application such …
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