                                                                             FILED
                                   NOT FOR PUBLICATION                        SEP 03 2010

                                                                         MOLLY C. DWYER, CLERK
                            UNITED STATES COURT OF APPEALS                 U.S . CO U RT OF AP PE A LS




                                   FOR THE NINTH CIRCUIT



 JAMIE ALDOS LEONARDO, JR.,                                No. 06-74750 and 08-71518

             Petitioner,                                   Agency No. A40-464-700

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

             Respondent.




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

                            Argued and Submitted October 6, 2009
                                  San Francisco, California

Before:        GOODWIN and PAEZ, Circuit Judges, and LEIGHTON,** District
               Judge.

        Jamie Aldos Leonardo, Jr., a native and citizen of the Philippines, petitions

for review of an order by the Board of Immigration Appeals ('BIA') denying




       *
         This disposition is not appropriate for publication and may not be cited to or
by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
        **
        The Honorable Ronald B. Leighton, United States District Judge for the
Western District of Washington, sitting by designation.
his motion to reopen as untimely and dismissing his claim of ineffective assistance

of counsel. We have jurisdiction to review the BIA's denial of Petitioner's motion

to reopen, pursuant to 8 U.S.C. y 1252(a)(2)(D), because an equitable tolling

analysis presents a mixed question of law and fact and, in this case, the historical

facts are not disputed. Ghahremani v. Gonzales, 498 F.3d 993, 998-99 (9th Cir.

2007). We also have jurisdiction over Petitioner's claim of ineffective assistance

of counsel because it presents constitutional due process concerns. See Ray v.

Gonzales, 439 F.3d 582, 587 (9th Cir. 2006).

      We review the BIA's denial of Petitioner's motion to reopen for an abuse of

discretion. Perez v. Muµasey, 516 F.3d 770, 773 (9th Cir. 2008). We review de

novo claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400

F.3d 785, 791-92 (9th Cir. 2005).

      The BIA's decision to deny Petitioner's motion to reopen was not supported

by substantial evidence. Petitioner's attorney engaged in deceitful conduct by

failing to file appropriate applications for relief, and Petitioner acted with due

diligence in discovering his attorney's fraudulent conduct. Thus, the BIA abused

its discretion in determining that the filing deadline for Petitioner's motion to

reopen should not be equitably tolled.




                                           2
      We further conclude that the BIA addressed the merits of Petitioner's

ineffective assistance of counsel claim, and that it erred in finding that Petitioner's

constitutional right to due process was not violated by his attorney's conduct.

Petitioner's counsel failed to file applications for relief and, therefore, provided

ineffective assistance. Further, Petitioner made a sufficient showing that he had

plausible grounds for relief in the form of withholding of removal under 8 U.S.C. y

1231(b)(3) and withholding and deferral of removal under the United Nations

Convention Against Torture ('CAT'), 8 C.F.R. yy 1208.16(c) and 1208.17(a).

      Because the BIA abused its discretion in denying the motion to reopen and

erred in dismissing Petitioner's claim of ineffective assistance, we remand to the

agency for a new hearing on the merits where Petitioner may seeµ appropriate

relief from removal.

      The petition for review is

      GRANTED AND REMANDED.




                                           3
                                                                               FILED
Leonardo v. Holder, Nos. 06-74750, 08-71518                                    SEP 03 2010

                                                                         MOLLY C. DWYER, CLERK
Goodwin, Circuit Judge, dissenting:                                       U.S . CO U RT OF AP PE A LS




      I respectfully dissent. This court lacµs jurisdiction to review a removal order

for an alien convicted of an aggravated felony. 8 U.S.C. y 1252(a)(2)(C); see

Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 919 (9th Cir. 2004). Leonardo pled

guilty to violations of California Health and Safety Code y 11378 for possession

for sale of methamphetamine, an aggravated felony, because the crime involves a

trafficµing element. Cazarez-Gutierrez, 382 F.3d at 918; see Saravia-Paguada v.

Gonzales, 488 F.3d 1122, 1125-26 (9th Cir. 2007) (recognizing that conviction

under y 11378 is an aggravated felony). 'An aggravated felony on a criminal

record has worse collateral effects than a felony conviction simple. Under the

immigration statutes . . ., the Attorney General's discretion to cancel the removal

of a person otherwise deportable does not reach a convict of an aggravated

felony.' Lopez v. Gonzales, 549 U.S. 47, 50 (2006) (emphasis added). The

administrative record also contains court documentation of multiple violations of

controlled-substance laws, and the Immigration Judge ('IJ') found this by 'clear

and convincing evidence.' Conviction of an aggravated controlled-substance

felony, however, is sufficient to remove this court's jurisdiction to review

Leonardo's removal order and additionally maµes him ineligible for cancellation of

removal, asylum, and voluntary departure.
      The administrative record also contains Leonardo's immigrant visa and alien

registration, on which he states that he has no spouse and further that he is single

and had 'never married,' with his sworn signature that his statements were true

and correct. Because Leonardo was married at the time, this statement was false

and constituted µnowing and deliberate fraud by Leonardo to gain entry into the

United States. On August 29, 2006, the Board of Immigration Appeals ('BIA')

dismissed Leonardo's appeal because he had abandoned his opportunity to seeµ

cancellation of removal by failing to apply by the deadline set by the IJ and

because he had an aggravated felony conviction. While he seeµs to blame his

attorney for missing filing deadlines or not filing, Leonardo's own aggravated-

felony conviction precluded relief from his removal by the BIA. Leonardo's

counsel was bad, and he was disbarred for his ineffective representation of

Leonardo and other aliens, but that is a side issue. The primary reasons for

Leonardo's warranted removal were his own actions of fraud and conviction of an

aggravated controlled-substance felony.

      On January 23, 2008, Leonardo moved to reopen his removal proceedings

and faulted his attorney for ineffective representation that should qualify Leonardo

for equitable tolling of the filing date. On March 18, 2008, the BIA denied

Leonardo's untimely motion to reopen. Specifically, the BIA noted that equitable

tolling applied only if Leonardo had been prevented from filing by fraud or error
by his attorney, and Leonardo had acted with due diligence to discover such fraud

or error. The BIA stated that its comments were sufficient to alert Leonardo that

his attorney had abandoned his application for relief, specifically its August 29,

2006, decision. Consequently, Leonardo cannot claim due diligence, because he

waited more than a year after that decision to file his motion to reopen. Thus,

Leonardo's aggravated-felony drug conviction, which was the reason for his

removal, remains, and he is ineligible for relief from removal. Therefore, the BIA

did not abuse its discretion by acting 'arbitrarily, irrationally, or in a manner

contrary to law' in denying Leonardo's untimely motion to reopen his removal

proceedings. Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000) (citation and

internal quotation marµs omitted).

      Because Leonardo's aggravated-felony drug conviction precludes

withholding of removal, this court lacµs jurisdiction over his petition.

Accordingly, I dissent.
