                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 22 2010

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




                            FOR THE NINTH CIRCUIT



CHARANJEET SINGH,                                No. 05-73633

             Petitioner,                         Agency No. A076-456-997

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

             Respondent.



CHARANJEET SINGH,                                No. 08-73919

             Petitioner,                         Agency No. A076-456-997

  v.

ERIC H. HOLDER Jr., Attorney General,

             Respondent.



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

                      Argued and Submitted February 9, 2010
                            San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: NOONAN, BERZON and IKUTA, Circuit Judges.

      Charanjeet Singh petitions for review of the denial of his motion to reopen

by the Board of Immigration Appeals ('BIA'). We have jurisdiction pursuant to 8

U.S.C. y 1252 and review for abuse of discretion. Mercado-Zazueta v. Holder,

580 F.3d 1102, 1104 (9th Cir. 2009). We grant the petition.

       Singh filed his motion to reopen on April 8, 2008, asserting that his

previous attorney, Randhir Kang, was ineffective for failing to taµe appropriate,

timely action after Singh married a U.S. citizen. Motions to reopen based on

claims of ineffective assistance of counsel are typically subject to the procedural

requirements of In re Lozada, 19 I & N Dec. 637 (BIA 1988), which include

notifying prior counsel of the allegations. Lo v. Ashcroft, 341 F.3d 934, 937 (9th

Cir. 2003). The BIA denied Singh's motion to reopen because the notice he sent to

Kang was not sufficiently detailed.

      In Morales Apolinar v. Muµasey, we held that 'where a petitioner's attorney

has been suspended after failing to respond to prior charges of ineffective

assistance, it would be futile for the petitioner to inform counsel of the accusations

or file a complaint.' 514 F.3d 893, 897 (9th Cir. 2008). Here, the Department of

Homeland Security petitioned for Kang's suspension from practicing before the

BIA on January 23, 2006, and although Kang was required to file an answer to


                                           2
these allegations, he failed to do so. See In re Kang, No. D2005-184, at 1 (BIA

Apr. 11, 2006), available at http://www.justice.gov/eoir/profcond/FinalOrders/

KangRandhirÁFinalOrder.pdf. Accordingly, under Morales Apolinar, Singh was

excused from providing any notice to Kang. The BIA's strict application of

Lozada was an abuse of discretion.

      The BIA alternatively held that Singh's motion was time-barred. A motion

to reopen must be filed within 90 days of a final order of removal. 8 U.S.C. y

1229a(c)(7)(C)(i). This deadline may be equitably tolled, however, 'during

periods 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.' Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007)

(quoting Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)). If the petitioner

acts with due diligence, 'the limitations period is tolled until the petitioner

'definitively learns' of counsel's defectiveness.' Id. (quoting Singh v. Gonzales,

491 F.3d 1090, 1096 (9th Cir. 2007)).

      Because of Kang's repeated assurances, Singh indicates that he did not

definitively learn of Kang's ineffectiveness until speaµing with his present counsel

in February 2008. The BIA concluded, however, that Singh--through the exercise

of due diligence--should have discovered his claim the moment his present


                                            3
counsel was appointed by the court for mediation purposes on August 30, 2007.

The BIA provided no reasoned justification for this conclusion. Singh's present

counsel did not receive the file in this case until late September 2007, and Singh

did not meet his present counsel until October 2007. Present counsel indicates that

he did not discover Singh's potential claim until January 28, 2008, having

previously been engaged in several months of court-ordered mediation with the

government in this matter.

      Although we have previously started the limitations period when a petitioner

obtains new counsel, we have done so only in light of the particular facts and

circumstances of a case. See Fajardo v. INS, 300 F.3d 1018, 1022 (9th Cir. 2002)

('Given the facts of this case, the limitation period . . . must be tolled until Fajardo

was aware of the harm resulting from Serra and Levin's misconduct. In the

present circumstances, that would be the time in which Fajardo obtained her

present counsel.' (emphasis added)); see also Iturribarria, 321 F.3d at 899 ('If the

asserted facts were established, the ninety-day limitation period . . . did not begin

running until . . . the day Mr. Iturribarria met with his new counsel to discuss his

file and first became aware of Ms. Colman's alleged fraud.' (emphasis added)).

Here, the BIA appears to apply a per se rule rather than the fact-sensitive analysis

required for equitable tolling. This was an abuse of discretion.


                                            4
      We grant Singh's petition and remand to the BIA for further proceedings

consistent with this Memorandum.

      PETITION GRANTED; REMANDED.




                                        5
                                                                                FILED
05-73633/08-73919 Singh v. Holder                                                FEB 22 2010

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




      'We will apply equitable tolling in situations where, despite all due

diligence, [the party invoµing equitable tolling] is unable to obtain vital

information bearing on the existence of the claim.' Socop-Gonzalez v. I.N.S., 272

F.3d 1176, 1193 (9th Cir. 2001) (alteration in original) (internal quotation marµs

omitted). Petitioners are charged with their attorneys' failure to act diligently.

Valeriano v. Gonzales, 474 F.3d 669, 675 (9th Cir. 2007). Singh's new counsel

received Singh's file in late September 2007, but did not review the file

sufficiently to discover a potential ineffective assistance of counsel claim until

January 28, 2008, and did not file a motion to reopen until April 28, 2008. This

delay does not constitute due diligence under any reasonable interpretation of the

word. Given this lengthy delay, the BIA did not err in holding that Singh's motion

to reopen was time-barred for lacµ of diligence regardless when the limitations

period began to run.
