                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 14 2012

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




                             FOR THE NINTH CIRCUIT



MARTHA MACIEL CHAVEZ,                            No. 09-71480

               Petitioner,                       Agency No. A075-502-646

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

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted March 6, 2012 **

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

       Martha Maciel Chavez, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen

based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C.

§ 1252. We review de novo questions of law and for abuse of discretion the denial


          *
             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).
of a motion to reopen. Ghahremani v. Gonzales, 498 F.3d 993, 997-99 (9th Cir.

2007). We grant the petition for review.

       The BIA concluded that Chavez failed to demonstrate the due diligence

required for equitable tolling, because she should have discovered the ineffective

assistance of her former attorney, James Valinoti, when she received the BIA’s

June 2, 2003, order dismissing her appeal as untimely filed. Chavez’s affidavit,

however, alleges that she asked Valinoti to explain the BIA’s order because she

does not speak English, that Valinoti did not inform her of the reason for the

dismissal, and that he stated that he would file an appeal at the Ninth Circuit and

that she would have to wait “a very long time.”

       The BIA is under “an affirmative obligation to accept as true the facts stated

in [Chavez’s] affidavit in ruling upon [her] motion to reopen unless it finds those

facts to be inherently unbelievable.” Ghahremani, 498 F.3d at 999 (quotation

omitted). It made no such finding here. Accordingly, the BIA’s determination was

an abuse of discretion. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1225 (9th Cir.

2002) (due diligence established where petitioners were taken advantage of by an

unscrupulous immigration consultant who lied about his own defaults); see also

Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (the BIA abuses its discretion if

its decision is “arbitrary, irrational, or contrary to law”).


                                             2                                   09-71480
      The government contends that regardless of whether Chavez demonstrated

due diligence, her motion was not timely as of the date that she “definitively

learn[ed],” Singh v. Gonzales, 491 F.3d 1090, 1096 (9th Cir. 2007), of Valinoti’s

fraud. The BIA did not consider the date that Chavez definitively learned of

Valinoti’s fraud, and it appears to be a matter of contention between the parties.

Accordingly, we remand for the BIA to consider this issue in the first instance. See

Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (“In reviewing the decision

of the BIA, we consider only the grounds relied upon by that agency. If we

conclude that the BIA’s decision cannot be sustained upon its reasoning, we must

remand to allow the agency to decide any issues remaining in the case.”).

      On remand the BIA should reconsider whether to treat the motion as a

motion to reopen, rather than a motion to reconsider, in light of our holding in

Irigoyen-Briones v. Holder, 644 F.3d 943, 949 (9th Cir. 2011), that the 30 day

deadline in 8 C.F.R. § 1003.38 is not jurisdictional. See Iturribarria v. INS, 321

F.3d 889, 895-897(9th Cir. 2003) (motions based on ineffective assistance of

counsel most properly treated as motions to reopen).

      PETITION FOR REVIEW GRANTED; REMANDED.




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