                                                                           FILED
                              NOT FOR PUBLICATION                           JUL 09 2012

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




                              FOR THE NINTH CIRCUIT



FERMIN REYES-MEDINA; et al.,                     No. 07-73158

               Petitioners,                      Agency Nos. A076-844-295
                                                             A076-844-296
  v.                                                         A076-844-297

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



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

                                                        **
                              Submitted June 26, 2012

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Fermin Reyes-Medina and his family, natives and citizens of Mexico,

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

their motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C.

§ 1252. We review for abuse of discretion the denial of a motion to reopen, and de


          *
             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).
novo purely legal questions. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.

2003). We grant the petition for review and remand.

      The BIA abused its discretion in finding that equitable tolling of the ninety-

day deadline to file the motion to reopen was not warranted for lack of diligence,

where petitioners acted with due diligence in discovering that former counsel failed

to file an opening brief in this court. See Mejia-Hernandez v. Holder, 633 F.3d

818, 825-26 (9th Cir. 2011); Iturribarria, 321 F.3d at 897 (equitable tolling is

available where petitioner acts with due diligence in discovering deception, fraud,

or error preventing timely filing).

      With respect to petitioners’ claim of ineffective assistance of counsel based

on conduct that occurred after the entry of a final order of removal, the BIA did not

have the benefit of our intervening decision in Singh v. Napolitano, 649 F.3d 899,

900-01 (9th Cir. 2011) when it concluded it lacked jurisdiction. Accordingly, we

grant the petition and remand to the BIA for further proceedings consistent with

this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

      PETITION FOR REVIEW GRANTED; REMANDED.




                                          2                                     07-73158
