                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           MAR 16 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S . CO U RT OF AP PE A LS

HUI HAO,                                         No. 07-70633

              Petitioner,                        Agency No. A079-537-383

  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 February 14, 2011
                              Pasadena, California

Before: ALARCMN, RYMER, and BYBEE, Circuit Judges.

       Hui Hao petitions for review from the order of the Board of Immigration

Appeals ('BIA') denying his motion to reopen. We have jurisdiction pursuant to

8 U.S.C. y 1252 and grant the petition.

       On May 15, 2006, Hao filed a motion to reopen before the BIA. The

Government does not dispute Hao's declaration that he filed the motion to reopen


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
based on ineffective assistance of counsel within ninety days after conferring with

newly appointed counsel.

      The BIA denied the motion to reopen on January 17, 2007. It held that Hao

failed to exercise due diligence in seeµing reopening. It alternatively concluded

that he had not shown that ineffective assistance of counsel prejudiced his case.

      Seven months later, on August 17, 2007, this court published its decision in

Ghahremani v. Gonzales, 498 F.3d 993 (9th Cir. 2007). In Ghahremani, we held

that the petitioner's hiring of new counsel after his appeal was denied by the BIA

'illustrates a paradigmatic case of due diligence.' Id. at 1000. We also concluded

that the fact that the petitioner's retained counsel did not provide him with 'vital

information' regarding his prior counsel's deficiencies 'does not undermine

Ghahremani's exercise of due diligence.' Id. In Iturribarria v. INS, 321 F.3d 889

(9th Cir. 2003), we held that the ninety-day limitations period for filing a motion to

reopen did not begin to run until the petitioner had 'met with his new counsel to

discuss his file and first became aware of [his prior counsel's] alleged fraud.' Id.

at 899.

      Here, the record supports Hao's contention that he acted with due diligence

in seeµing the advice of counsel within thirty days of the BIA's decision. He has

also demonstrated that he filed his motion to reopen within ninety days of being


                                           2
informed by pro bono counsel to present his claim of ineffective assistance of

counsel. Accordingly, the BIA abused its discretion in concluding that he was not

entitled to equitable tolling.

       In denying the motion to reopen, the BIA also stated that Hao was not

prejudiced by his trial attorney's alleged ineffective representation. The record

shows that the IJ found that Hao's trial counsel had failed 'to substantiate' that

Hao suffered a cigarette burn. The IJ stated: '[T]he better way in the future is to

have properly identified photographs from qualified individuals.' Hao's trial

counsel's failure to present corroborative physical evidence of torture may have

affected the IJ's decision regarding Hao's credibility. See Singh v. Ashcroft, 301

F.3d 1109, 1112 (9th Cir. 2002) ('An adverse credibility determination may be

reversed . . . when the applicant has provided corroborating evidence, even if the IJ

had some basis for disbelieving the applicant.').

       We are persuaded that Hao demonstrated plausible grounds for relief on his

motion to reopen. The petition for review is GRANTED.




                                           3
                                                                               FILED
Hao v. Holder, No. 07-70633                                                     MAR 16 2011

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




       I would hold that the BIA did not abuse its discretion in finding that Hao

failed to exercise due diligence in pursuit of his rights and, in the alternative, that

Hao has not demonstrated that he was prejudiced by ineffective assistance of

counsel. Accordingly, I dissent.

                                            I

       As a general matter, a motion to reopen must be filed 'within 90 days of the

date of entry of a final administrative order of removal.' 8 U.S.C. y

1229a(c)(7)(C)(i). This deadline may be equitably tolled 'when a petitioner is

prevented from filing because of deception, fraud, or error, as long as the

petitioner acts with due diligence in discovering the deception, fraud or error.'

Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (emphasis added). Wholly

aside from the question of whether Hao's counsel committed a 'deception, fraud,

or error' sufficient to warrant tolling, I would affirm the BIA's determination that

Hao failed to exercise due diligence in discovering any such deficiency.

       Here, the BIA affirmed the IJ's denial of Hao's request for asylum (and

thereby triggered the start of the limitations period) on May 11, 2004. As the

majority observes, he sought advice from a new lawyer, Thomas Tarigo, within

thirty days of this decision. Hao claims that he paid Tarigo for legal services but
remains 'unaware' if Tarigo actually filed an appeal. Nonetheless, he filed a

petition for review with this court pro se on June 10, 2004. We appointed pro bono

counsel on December 9, 2005, and Hao filed his motion to reopen on May 15,

2006.

        In other words, based on the information available in the record, Hao does

not appear to have sought legal advice for the eighteen-month period between June

10, 2004 and December 9, 2005. Nor does he explain why he failed to seeµ such

assistance. This undermines the majority's reliance on Ghahremani v. Gonzales,

498 F.3d 993 (9th Cir. 2007). In Ghahremani, we found that a petitioner had

exercised due diligence after he showed 'unbroµen efforts to retain competent

counsel and file a motion to reopen' by continually hiring new counsel following

each adverse decision.1 Id. at 1000. The court emphasized that Ghahremani

'demonstrated a steadfast pursuit of his case throughout proceedings before the

agency,' thereby demonstrating due diligence. Id. Here, although Hao was

awaiting a decision by our court during the eighteen months in which he was not

represented by counsel, nothing in the record shows that Hao made any effort to


        1
         Ghahremani retained different counsel for his oral hearing before the IJ, for
his appeal before the BIA, after the BIA's dismissal of a motion to reconsider, and
for his petition for review before this court. Ghahremani, 498 F.3d at 996. There
was no delay between each decision and Ghahremani's subsequent consultation
with new counsel.

                                          2
procure new counsel or file a motion to reopen. Such inaction supports the BIA's

determination that Hao did not act with due diligence. See Singh v. Gonzales, 491

F.3d 1090, 1096-97 (9th Cir. 2007) (finding that a petitioner did not exercise due

diligence because of a six-month delay between his suspicion of ineffective

assistance and his consultation with new counsel). At a minimum, the eighteen-

month gap in time during which Hao did not appear to have sought additional legal

advice renders the BIA's decision far from an abuse of discretion.

                                             II

       Even if the majority is correct and Hao is entitled to equitable tolling, I

would nonetheless affirm the BIA's alternative finding that he failed to show

sufficient prejudice to be entitled to relief. An alien is entitled to relief for

ineffective assistance of counsel 'if the proceeding was so fundamentally unfair

that the alien was prevented from reasonably presenting his case.' Mohammed v.

Gonzales, 400 F.3d 785, 793 (9th Cir. 2005) (citation omitted). To show this, Hao

'must demonstrate first that counsel failed to perform with sufficient competence,

and, second, that [he] was prejudiced by counsel's performance.' Id. It is enough

to show that 'the performance of counsel was so inadequate that it may have

affected the outcome of the proceedings.' Id. at 793-94 (quoting Ortiz v. INS, 170

F.3d 1148, 1153 (9th Cir. 1999)).



                                             3
      Hao alleges three primary deficiencies in his representation by Walter

Burrier: (1) Burrier's failure to correct translation problems during Hao's hearing

before the IJ, (2) Burrier's failure to adequately prepare Hao for his hearing, and

(3) Burrier's failure to properly document a cigarette burn on Hao's leg. The

majority (correctly) does not suggest that either of the first two deficiencies

prejudiced Hao's proceedings.2

      The majority instead suggests that Hao's counsel's failure to present

properly authenticated corroborative physical evidence of torture (in the form of

cigarette burns) unfairly impacted his proceeding.3 It is true that '[a]n adverse

credibility determination may be reversed . . . when the applicant has provided

corroborating evidence, even if the IJ had some basis for disbelieving the

applicant.' Singh v. Ashcroft, 301 F.3d 1109, 1112 (9th Cir. 2002). Here,

however, the IJ issued a comprehensive oral decision and order, indicating that it

was the large number of inconsistencies between Hao's statement and testimony,

and not any lacµ of physical corroboration, that supported his adverse credibility


      2
        We already addressed any potential translation issues when we denied
Hao's earlier petition for review. See Hao v. Gonzales, 202 Fed. Appx. 212, 213
(9th Cir. 2006).
      3
         It is worth noting that even before this court, represented by new counsel,
Hao has not presented any further evidence of this cigarette burn, maµing it
difficult to determine how such evidence might have affected the proceedings
below.

                                           4
determination. Among other things, the IJ flagged inconsistencies between Hao's

stories regarding the receipt of certain documents, inconsistencies between Hao's

description of when and how he and his father practiced Falun Gong, varying

accounts concerning the length and nature of Hao's detention by Chinese officials,

and the implausibility of Hao's explanation of how he arrived in the United States.

      Neither Hao nor the majority explains how evidence of cigarette burns

(possibly) suffered because of torture would have balanced out the deleterious

effects of these inconsistencies. It cannot be the case that a petitioner can succeed

on an ineffective assistance claim in every case where an attorney fails to submit

corroborative physical evidence and the IJ maµes an adverse credibility

determination. Accordingly, I would hold that the BIA did not abuse its discretion

in finding that, were Hao entitled to equitable tolling, his petition should

nonetheless be denied because he failed to show prejudice.

      I respectfully dissent.




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