                                                                           FILED
                              NOT FOR PUBLICATION                           JUL 29 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



MARIA VALDOVINOS QUIROZ; ANA                     Nos. 08-70983
ELIA VALDOVINOS QUIROZ,                               08-74549
                                                      08-74650
               Petitioners,
                                                 Agency Nos. A075-644-864
  v.                                                         A072-530-107

ERIC H. HOLDER, Jr., Attorney General,
                                                 MEMORANDUM *
               Respondent.



                       On Petitions for Review of Orders of the
                           Board of Immigration Appeals

                              Submitted July 19, 2010 **

Before:        B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       In these consolidated petitions for review, Maria Valdovinos Quiroz and

Ana Elia Valdovinos Quiroz, mother and daughter and natives and citizens of

Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing their appeal from an immigration judge’s (“IJ”) decision denying their

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
applications for cancellation of removal, as well as the BIA’s orders denying their

individual motions to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252.

We review for abuse of discretion the denial of a motion to reopen, and de novo

due process claims. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We

dismiss the petition for review in No. 08-70983. We deny the petition for review

in No. 08-74549. We grant the petition for review in No. 08-74560. We stay the

mandate and refer these petitions to the Circuit Mediator.

      To the extent that petitioners challenge the BIA’s January 10, 2008, order

dismissing their appeal, we lack jurisdiction because the petition for review is not

timely. See 8 U.S.C. § 1252(b)(1) (petition for review must be filed no later than

30 days after final removal order).

      The BIA did not abuse its discretion when it denied petitioner Ana Elia

Valdovinos Quiroz’s motion, because construed as either a motion to reopen or

reconsider, it was untimely. See 8 C.F.R. § 1003.2(c)(2), (b)(2).

      The BIA abused its discretion when it determined that petitioner Maria

Valdovinos Quiroz’s untimely motion to reopen was not subject to equitable

tolling of the motions deadline. See Iturribarria, 321 F.3d at 897 (court recognizes

tolling of motions deadline during periods where petitioner is prevented from filing

because of deception, fraud, or error). In its decision, the BIA noted that Maria


                                          2                                    08-70983
was advised by present counsel of a possible ineffective assistance of counsel

claim on May 14, 2008, and Maria filed her motion to reopen on that basis on July

30, 2008, less than 90 days after the advice from counsel. See Iturribarria, 321

F.3d at 899.

        Although Maria’s motion did not completely satisfy the requirements of

Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), strict compliance is not

required here because the ineffective assistance of counsel is plain on the face of

the record. See Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir. 2000) (strict

Lozada compliance not required where ineffective assistance of counsel is plain on

the face of the record). At the initial hearing on remand, Maria’s former counsel

failed to inform the IJ that her U.S. citizen daughter, who the BIA had earlier noted

suffers from “serious” paranoid schizophrenia, would soon turn 21 years old. See

8 U.S.C. § 1101(b)(1) (defining “child,” in part, as a person under 21). As a result,

once the daughter turned 21, she was no longer a “qualifying relative” for Maria,

and the IJ was unable to consider Maria’s application for cancellation of removal.

See 8 U.S.C. § 1229b(b)(1).

      We therefore remand Maria’s case for a prejudice determination, and any

other equitable relief the agency may consider appropriate, including any relief that

Ana may be eligible for.


                                          3                                    08-70983
      We stay the mandate, and refer these petitions to the Circuit Mediator to

explore possible resolution through mediation, considering petitioner Maria

Valdovinos Quiroz’s status as a beneficiary of an I-130 visa petition filed by her

United States citizen daughter, Yvonne; a substantial portion of the Quiroz

family’s lawful status in the United States; and the facts related to ineffectiveness

of counsel and the consequences described in this disposition. Submission of this

appeal is vacated until further order of the Court. If, in the sole judgment of the

Circuit Mediator, resolution through mediation is not possible, the Circuit

Mediator shall inform the panel. The Circuit Mediator is instructed to provide a

report to the panel every ninety (90) days following the issuance of this order. The

panel will retain jurisdiction over these petitions for review.

      Ana Elia Valdovinos Quiroz’s motion to file her untimely reply brief is

granted.

      In No. 08-70983, PETITION FOR REVIEW DISMISSED.

      In No. 08-74549, PETITION FOR REVIEW DENIED.

      In No. 08-74650, PETITION FOR REVIEW GRANTED.

      MANDATE STAYED; PETITIONS REFERRED TO

CIRCUIT MEDIATOR.




                                           4                                    08-70983
