                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                             FOR THE NINTH CIRCUIT
                                                                           OCT 30 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
JOSE MUNOZ GODINEZ; ANTONIA                      No. 09-71644
MUNOZ,
                                                 Agency Nos.         A075-758-732
              Petitioners,                                           A075-758-733

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

            Argued November 17, 2014 Submitted October 30, 2015**
                            Pasadena, California

Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.

      Jose Munoz Godinez and Antonia Munoz (the Munozes) petition for review

of the BIA’s denial of their motion to reopen. We have jurisdiction to review the




       *
             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).
BIA’s decision as a final order of removal under 8 U.S.C. § 1252. We grant the

petition.

       The BIA denied the motion to reopen as untimely, finding that the Munozes

were not entitled to equitable tolling. This court reviews the BIA’s ruling on a

motion to reopen for abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th

Cir. 2008).

Equitable Tolling

       The BIA denied the Munozes’ motion to reopen as untimely. In so ruling,

the BIA rejected the argument that the time within which to reopen for ineffective

assistance should be tolled because the Munozes knew that Carlos Lewis, their

notario immigration consultant, was not an attorney. The BIA erred. The deadline

to file a motion to reopen is equitably tolled when the deadline is missed because

of fraud of a non-attorney immigration consultant.1 See Varela v. INS, 204 F.3d




       1
       Although the petitioners argue for equitable tolling under a theory of
ineffective assistance of counsel, notario Lewis is not at attorney. See Hernandez v.
Mukasey, 524 F.3d 1014, 1015–16 (9th Cir. 2008) (holding that “knowing reliance
upon the advice of a non-attorney cannot support a claim for ineffective assistance
of counsel”); cf. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1224 (9th Cir. 2002)
(finding petitioners worthy of equitable tolling due to ineffective assistance of
counsel where they knowingly relied on a non-attorney who purported to be
coordinating legal services on their behalf).
                                                                          (continued...)

                                           2
1237, 1240 (9th Cir. 2000) (holding that equitable tolling is appropriate where

petitioner was “defrauded by an individual purporting to provide legal

representation”).

      Here, the Munozes paid Lewis at J&N Enterprises to handle their

immigration case. The Munozes reasonably believed that Lewis worked with

attorneys because Lewis provided them with an attorney to represent them at two

hearings before the Immigration Judge (IJ). On October 28, 2004, the IJ denied the

Munozes’ applications for cancellation of removal. Two days later, the Munozes

paid notario Carlos Lewis at his request an additional $1,300 to handle their appeal

to the BIA. Because Lewis and J&N Enterprises had twice provided the Munozes

with an attorney when they appeared before the IJ, the Munozes reasonably

believed that the additional $1,300 was paid for an attorney to work on their appeal

to the BIA. Instead, Lewis, their non-attorney immigration consultant, handled

their appeal himself.



      1
        (...continued)
       A more appropriate grounds for equitable relief is a theory of fraud of a
non-attorney immigration specialist, which we find implicit in the petitioners’
argument. See Fajardo v. INS, 300 F.3d 1018, 1021 (9th Cir. 2002) (holding that
an argument of ineffective assistance could be construed as an argument of fraud
because “[i]n the present case, the distinction between arguing misconduct and
fraud is merely semantic” and “the precise language used should not prohibit
resolution” of a petitioner's claim).

                                          3
      The deadline for the Munozes to file an appeal with the BIA was November

29, 2004. ER 365. On January 10, 2005, over one month after the deadline, Lewis

filed an untimely notice of appeal with the BIA that was not signed by an attorney.

Notario Lewis attached a letter to the untimely notice of appeal that cast blame on

the Munozes for the late filing of the appeal. While the letter was signed by Jose

Munoz, it was in English. Jose Munoz cannot speak or read English so he did not

understand what he was signing.

      The BIA denied the Munozes’ appeal on March 16, 2005. Notario Lewis

failed to inform the Munozes that the BIA denied their appeal. In fact, notario

Lewis lied to the Munozes, telling them that the appeal was filed late with the BIA

due to bad weather, but that “he would fix everything so [the Munozes] could still

have [their] appeal.” Lewis also failed to inform the Munozes that he filed a

motion to reconsider with the BIA or that it was denied in June 2005.

      Thereafter, the Munozes had only occasional contact with notario Lewis.

Occasionally Lewis sent them a document to sign, but he never explained the

purpose of any of the documents.

      In 2008, the Munozes began receiving documents from this court. The

Munozes were unaware that an appeal had been filed with the Ninth Circuit and




                                          4
grew concerned because they had not been informed of the outcome of their appeal

with the BIA. At this time, the Munozes decided to contact another attorney.

      On November 25, 2008, the Munozes met with an attorney at the Hill, Piibe,

and Villegas law firm who examined the documents they had received from the

Ninth Circuit and explained what had occurred with their case before the BIA and

that an appeal was now pending before this court.

      Apparently, on December 5, 2005, notario Lewis had filed a two-page

“informal brief” on behalf of the Munozes with the Ninth Circuit challenging the

BIA’s denial of the motion to reconsider. Ultimately, on February 13, 2009,

without holding oral argument, a three-judge panel of our court (Farris, Wardlaw,

and District Judge William W. Schwarzer of the Northern District of California)

denied the petition in part and dismissed the petition in part. Our court determined

that the BIA had not abused its discretion in denying the Munozes’ motion to

reconsider because no errors of fact or law were raised. Id. Further, our court did

not have jurisdiction to review the BIA’s denial of the direct appeal as untimely

because no petition for review of that decision was filed. Id.

      During the November 25, 2008 meeting the Hill, Piibe, and Villegas

attorney also informed the Munozes that the appeal and motion to reconsider that

had been filed with the BIA were signed by Mr. Munoz only, as if they had not


                                          5
been worked on by an attorney. This same day the Munozes hired the Hill, Piibe,

and Villegas law firm to file a motion to reopen with the BIA. The Hill, Piibe, and

Villegas law firm remains the Munozes’ counsel to this day. New counsel filed a

motion to reopen with the BIA on December 23, 2008. The BIA denied that motion

on April 30, 2009. The BIA’s denial of the motion to reopen is the subject of the

appeal before us.

      We have recognized the need for equitable tolling in cases where petitioners

are defrauded by individuals purporting to provide or coordinate legal services.

Varela, 204 F.3d at 1240; Lopez, 184 F.3d at 1097. In Lopez, for example, a notary

posed as an attorney and was late in filing documents for the petitioner. Id. at 1100.

While it does not appear that Lewis or any representative from J&N Enterprises

explicitly lied about being an attorney, Lewis undertook deceptive practices in his

work with the Munozes. After their initial agreement to work with the Munozes,

Lewis and J&N Enterprises ensured that the Munozes had an attorney at their

hearings before the IJ. However, after their second agreement regarding filing an

appeal with the BIA, it appears that no attorneys worked on the Munozes’s case,

despite the Munozes upholding their end of the bargain and paying J&N

Enterprises $1,300. Subsequently, Lewis lied about the reasons for the untimely

appeal and failed to inform the Munozes of either the filing or denial of a motion to


                                          6
reconsider. It was reasonable for the Munozes to believe they had contracted for

the provision of legal services, and the fraudulent practices of Lewis in this regard

are enough to require equitable tolling.

      Thus, the BIA abused its discretion when it determined that the Munozes

were not entitled to equitable tolling.


      PETITION GRANTED. REMANDED.




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