This court has jurisdiction pursuant to 8 U.S.C. § 1252 to review an order of the BIA denying the petitioner’s motion to reopen for abuse of discretion. Questions of law and claims of due process violations in immigration proceedings are reviewed de novo.
Equitable tolling is available when a petitioner is prevented from filing a motion to reopen because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.
The BIA’s denial of equitable tolling based on a finding that the petitioner failed to act with due diligence in discovering his counsel’s ineffectiveness was an error. Where the petitioner is a layperson and non-native English speaker, his failure to comprehend the legal significance of his prior counsel’s errors does not indicate a lack of due diligence. Where each time the petitioner became suspicious of his counsel’s performance, he immediately sought new counsel and informed his new counsel of the facts of his case to the extent that he understood them, the petitioner’s actions constitute due diligence, and the BIA’s finding to the contrary is an abuse of discretion. Accordingly, the petitioner is entitled to equitable tolling of the time limitations, as well as the number limitations, on his motion to reopen.
A non-citizen’s right to due process is violated when counsel’s ineffective assistance renders the proceeding so fundamentally unfair that the alien was prevented from reasonably presenting his case. In order to establish a due process violation, the petitioner must also demonstrate prejudice.
This court has authority to address the merits of a motion to reopen despite the BIA’s failure to do so, particularly where the merits rest on “purely legal claims.”
The petitioner’s was prevented from reasonably presenting his case and thus denied due process because of the ineffectiveness of his former counsels, where the petitioner’s former counsels (1) erroneously advised him to submit his I-130 application but not its approval during the pendency of his asylum appeal before the BIA, (2) caused the petitioner to missed the opportunity to file a motion to reopen within the ninety-day deadline by advising him to instead write a “letter of reconsideration to the EOIR, and (3) filed an untimely motion to reopen and failed to make any equitable tolling argument. These failures prevented the petitioner from effectively presenting to the BIA his approved I-130, the crux of his claim for adjustment of status. The errors of the petitioner’s former counsels therefore denied him due process.
Where the petitioner’s former counsels gave erroneous advice on the proper documents to submit to the BIA, and where the petitioner’s former counsel failed to request equitable tolling of the statute of limitation affecting the outcome of the motion to reopen, their errors were prejudicial. Because the petitioner needs only show that former counsel’s deficient performance may have affected the outcome of the proceedings, this court finds that he has met his burden.
The government’s argument that the petitioner’s failure to depart pursuant to a voluntary departure order rendering him ineligible for adjustment of status for ten years is without merit. This argument is foreclosed by the BIA’s decision In re Diaz-Ruach, 24 I&N Dec. 47 (BIA 2006). Where the petitioner failed to post a departure bond, the departure order is vacated and the petitioner is not barred from seeking adjustment of status. Based on his I-130 approval, the petitioner can show plausible grounds for relief, fulfilling the prejudice requirement.
Where the BIA found that the petitioner has substantially complied with the procedural requirements for making ineffective assistance of counsel claims set forth in Matter of Lozada, 19 I & N Dec 637 (BIA 1988), this court concludes that the petitioner has satisfied the elements necessary to establish a due process violation based on ineffective assistance of counsel. Therefore, petition for review is granted and the case is remanded to the BIA with directions to grant the petitioner’s motion to reopen.
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