                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             FEB 26 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SERGIO ALFONSO ARREOLA-                          No.   15-71122
ARREOLA,
                                                 Agency No. A011-434-117
              Petitioner,

 v.                                              MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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

                     Argued and Submitted February 12, 2018
                            San Francisco, California

Before: HAWKINS, BEA, and N.R. SMITH, Circuit Judges.

      Sergio Alfonso Arreola-Arreola, a native and citizen of Mexico, petitions for

review of the order of the Board of Immigration Appeals, which dismissed his

appeal from an immigration judge’s denial of his motion to reopen his 1998




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
removal proceedings.1 We have jurisdiction under 8 U.S.C. § 1252. We grant the

petition for review.

      The Board abused its discretion in rejecting Arreola-Arreola’s motion to

reopen. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (holding that

equitable tolling is available “when a petitioner is prevented from filing [a motion

to reopen] because of deception, fraud, or error, as long as the petitioner acts with

due diligence in discovering the deception, fraud, or error”). Arreola-Arreola

asserted he was prevented from filing a timely motion to reopen based on two

separate incidents of ineffective assistance of counsel. The Board rejected Arreola-

Arreola’s claim, finding that Arreola-Arreola’s first counsel did not provide

ineffective assistance of counsel and, in light of no error by his first counsel, that

his second counsel’s performance was not prejudicial.2

      The Board failed to address all of the issues raised with regard to whether

Arreola-Arreola’s first counsel provided ineffective assistance of counsel. The

Board properly concluded that Arreola-Arreola’s first counsel’s advice—that an

appeal to the Board would likely have been unsuccessful—was reasonable under


      1
          Respondent’s unopposed motion to supplement the record is GRANTED.
      2
        Because the Board concluded that there was no deception, fraud, or error, it
did not reach the issue of whether Arreola-Arreola was diligent in discovering his
counsels’ alleged ineffective assistance of counsel.
                                            2
the circumstances. See Strickland v. Washington, 466 U.S. 668, 689 (1984).

However, the Board failed to address whether Arreola-Arreola’s first counsel’s

advice that he could not appeal to the Ninth Circuit was ineffective assistance of

counsel. Because “this court cannot affirm the [Board] on a ground upon which it

did not rely,”3 Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000), we must

remand for the Board to address this issue in the first instance, INS v. Ventura, 537

U.S. 12, 17–18 (2002) (per curiam).

      Because remand is required to determine whether Arreola-Arreola’s first

counsel was ineffective, we are unable to determine whether Arreola-Arreola’s

second counsel’s performance was prejudicial. Therefore, we also remand this

issue for the Board to reevaluate after it makes a final determination of Arreola-

Arreola’s first counsel’s performance. The Board should also consider

Arreola-Arreola’s argument that the pendency of his two reinstated removal orders

tolled the limitations period until those orders were vacated.4

      PETITION FOR REVIEW GRANTED; REMANDED.

      3
        The statement that Arreola-Arreola could not appeal the immigration
judge’s decision to the Ninth Circuit could be interpreted to mean that he could not
appeal the decision directly to the Ninth Circuit. However, the Board did not
engage in any analysis of this statement, thus it did not make any such
interpretation.
      4
        In light of our disposition, we need not address the remaining issues raised
on appeal.
                                           3
