                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 10a0227p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                X
                                                 -
 RANIA KAMAL TOUBIA MEZO,
                                                 -
                                           Petitioner,
                                                 -
                                                 -
                                                     No. 09-3336
           v.
                                                 ,
                                                  >
                                                 -
                                  Respondent. -
 ERIC H. HOLDER, JR., Attorney General,
                                                 -
                                                N
                          On Petition for Review from the
                          Board of Immigration Appeals.
                            No. A098 526 196 Detroit.
                                    Argued: March 12, 2010
                              Decided and Filed: August 2, 2010
                                                                                               *
     Before: MARTIN and GIBBONS, Circuit Judges; MARBLEY, District Judge.

                                      _________________

                                           COUNSEL
ARGUED: David H. Paruch, LAW OFFICES, Troy, Michigan, for Petitioner. Gladys
Marta Steffens Guzman, OFFICE OF IMMIGRATION LITIGATION, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: David H. Paruch, LAW OFFICES, Troy, Michigan, for Petitioner.
Michele Y. F. Sarko, OFFICE OF IMMIGRATION LITIGATION, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
                                      _________________

                                            OPINION
                                      _________________

        BOYCE F. MARTIN, JR., Circuit Judge. Rania Mezo claims that she received
ineffective assistance of counsel and seeks review of the Board of Immigration Appeals’



        *
           The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                  1
No. 09-3336             Mezo v. Holder                                                      Page 2


denial of her motion to reopen. Because the Board abused its discretion in finding that
Mezo did not show due diligence, we VACATE and REMAND the Board’s decision
for further fact-finding to determine the truth of Mezo’s allegations. If the Board finds
that she received ineffective assistance of counsel and that Mezo was prejudiced by the
ineffective assistance, equitable tolling would apply, the motion to reopen would be
timely, and the Board would then rule on the motion to reopen on its merits. If the
Board finds that she did not receive ineffective assistance of counsel, equitable tolling
would not apply, the motion to reopen would not be timely and the Board would lack
jurisdiction to hear her motion to reopen.

                                                   I.

A.      Background1

        Mezo is a native of the United Arab Emirates and a citizen of Iraq. She is a
Catholic of Chaldean nationality,2 which are religious and ethnic minorities in the
Middle East. When Saddam Hussein’s regime occupied Kuwait in 1991, her family
moved to Syria to escape retaliatory actions against Iraqis living in the United Arab
Emirates. Mezo alleges that she was persecuted throughout her childhood and early
adulthood by her teachers and classmates because she was not Muslim and refused to
join the Ba’ath party. Mezo claims that, between April 6, 1997 and May 18, 2005,
when she fled to the United States, she was investigated, threatened, interrogated,
imprisoned, tortured, and raped by members of the Syrian Security Administration on
multiple occasions.

        Mezo arrived in the United States on May 18, 2005, on a non-immigrant-fiancee-
of-a-United-States-citizen visa, with authorization to remain in the United States until
no later than August 17, 2005. However, she stayed beyond that time without
authorization. On September 19, 2005, within one year of her arrival, she filed an


        1
           Facts are drawn from Mezo’s personal statement in her claim for asylum. Because it is not
pertinent to the issue on appeal, we only briefly summarize her personal background.
        2
            Mezo’s mother is Syrian. Her father is Chaldean.
No. 09-3336            Mezo v. Holder                                                             Page 3


Application for Asylum and Withholding of Removal with the Chicago Asylum Office
of the Department of Homeland Security, but it denied her request and referred her to
an evidentiary hearing before an immigration judge. On December 22, 2005, the
Department of Homeland Security served Mezo with a Notice to Appear, charging her
with removability under the Immigration and Nationality Act § 237(a)(1)(B), 8 U.S.C.
§ 1227(a)(1)(B), for having remained in the United States longer than permitted.

         On July 26, 2007, Mezo applied for asylum, withholding of removal, and
protection under the Convention Against Torture, Vienna Convention on Consular
Relations, 21 U.S.T. 77, 595 U.N.T.S. 261 (ratified by the United States on Nov. 24,
1969), in a hearing held before an immigration judge. In an oral decision, the
immigration judge denied Mezo’s applications for asylum, withholding of removal under
the Act with respect to the United Arab Emirates and Iraq, and protection under the
Convention with regard to the United Arab Emirates, Syria, and Iraq. The judge granted
Mezo’s application for withholding of removal under the Act with regard to Syria. The
judge then ordered that Mezo be deported to Iraq, or in the alternative, to the United
Arab Emirates, specifying orally and in writing that Mezo’s appeal was due by
August 27, 2007.

B.       Ineffective Assistance of Counsel

         On August 23, 2007, Mezo retained attorney Patricia Sullivan to file her appeal.
Mezo made a partial attorney’s fee payment and paid the filing fee of six-hundred and
ten dollars to Sullivan that day. Because Sullivan chose to mail the appeal via United
States regular mail,3 the appeals office did not receive the notice of appeal until
September 4, 2007.4 On October 11, 2007, the Board denied the appeal because the
notice of appeal was filed after the August 27, 2007 deadline, and the Board stated that


         3
            Although the record does not state that Sullivan promised to timely file Mezo’s appeal, it is
difficult to imagine why Mezo would have retained an attorney without such an understanding.
         4
          Sullivan asserted in her motion to reconsider that the original appeal was untimely filed because
of “delivery delay caused by outside clerical deficiencies.” (App’x at 34.) The envelope in which she
mailed the appeal was post-marked August 24, 2007. It is unclear why the notice of appeal and filing fee
was not received until September 4, 2007.
No. 09-3336          Mezo v. Holder                                                        Page 4


it therefore lacked jurisdiction to hear the appeal. The record reflects that Sullivan sent
Mezo a letter on September 11, 2007, stating that the notice of appeal was filed with the
appeals office on September 4, 2007. Mezo alleges that Sullivan never informed her that
the appeal was subsequently denied, although Mezo called Sullivan several times to
inquire about the appeal. Instead, Sullivan told Mezo that “everything was taken care
of”, to “wait for a decision”, and “that she needed more time and that [Mezo] should not
worry.” (App’x at 18.) Mezo stated that she believed that Sullivan “took care of the
matter and properly processed her appeal.” (Id.)

        In June 2008, approximately ten months after Sullivan filed the appeal, Mezo
consulted attorney Faten Tina Shuker about her case. According to Mezo, it was only
then that she discovered that her appeal had been dismissed because it was untimely
filed. Mezo also learned that Sullivan had filed a motion to reconsider on her behalf on
November 20, 2007. However, this motion was due within thirty days of the October
1, 2007 decision. The Board, therefore, dismissed the motion to reconsider as untimely
on March 21, 2008.

        Mezo, with Shukar’s aid, worked to obtain her file from Sullivan. She then filed
a grievance against Sullivan with the State of Michigan Attorney Grievance Commission
on July 24, 2008, and she served a copy of the grievance on Sullivan the next day in
compliance with the requirements for asserting a viable claim of ineffective assistance
of counsel described in Matter of Lazado, 19 I & N Dec. 637, 639 (BIA 1988).5 Mezo
also filed a motion to reopen on July 25, 2008, claiming that she was denied due process
of law because Sullivan’s errors and misrepresentations rendered her assistance
ineffective. Mezo further contended that she was eligible to reopen her asylum case
based on changed country conditions in Iraq and recent legislation, the National Defense
Authorization Act, 8 U.S.C. § 1229a(c)(7) (2008), allowing certain Iraqis who were




        5
          The Attorney General vacated Lazado in Matter of Compean, 24 I & N Dec. 710 (BIA 2009).
However, the Attorney General subsequently vacated Compean in Matter of Compean, 25 I & N Dec. 1
(BIA 2009), directing immigration judges to apply the Lazado standard to motions to reopen based on
claims of ineffective assistance of counsel.
No. 09-3336          Mezo v. Holder                                                     Page 5


denied asylum after March 1, 2003, for, inter alia, changed country conditions, to reopen
their cases.

        In March 2009, the Board denied Mezo’s motion to reopen, finding that she
failed to establish that she exercised due diligence in both hiring an attorney to file her
initial appeal only four days before the due date of her original appeal and in filing her
motion to reopen four months after the Board’s decision dismissing the motion to
reconsider. Mezo timely appealed, arguing that the Board abused its discretion when it
refused to apply equitable tolling to excuse her failure to timely file and denied her
motion to reopen.

                                              II.

        Where an alien seeks to reopen a time-barred motion, the doctrine of equitable
tolling may be applied to permit reopening when the alien demonstrates that she received
ineffective assistance of counsel and was prejudiced thereby. See Allabani v. Gonzales,
402 F.3d 668, 676 (6th Cir. 2005) (“The alien carries the burden of establishing that
ineffective assistance of counsel prejudiced him or denied him fundamental fairness in
order to prove that he has suffered a denial of due process.”) (citing Huicochea-Gomez
v. INS, 237 F.3d 696, 699 (6th Cir. 2001)). “Strictly defined, equitable tolling is [t]he
doctrine that the statute of limitations will not bar a claim if the plaintiff, despite diligent
efforts, did not discover the injury until after the limitations period had expired.” See
Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008) (citing Tapia-Martinez v.
Gonzales, 482 F.3d 417, 422 (6th Cir. 2007)). “Equitable tolling may apply when a
petitioner has received ineffective assistance of counsel.” Id. (citing Ljucovic v.
Gonzales, 144 F. App’x 500, 503 (6th Cir. 2005)).

        “To determine whether to apply equitable tolling to time-barred claims, we
generally consider five factors that include: ‘(1) the petitioner’s lack of notice of the
filing requirement; (2) the petitioner’s lack of constructive knowledge of the filing
requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the
respondent; and (5) the petitioner’s reasonableness in remaining ignorant of the legal
No. 09-3336          Mezo v. Holder                                                   Page 6


requirement for filing his claim.’” Barry, 524 F.3d at 724 (quoting Ajazi v. Gonzales,
216 F. App’x 515, 518 (6th Cir. 2007)).

         We review a denial of a motion to reopen for abuse of discretion. Tapia-
Martinez, 482 F.3d at 421. An abuse of discretion occurs when the denial “was made
without a rational explanation, inexplicably departed from established policies, or rested
on an invidious discrimination against a particular group.” Id. We review issues of law
de novo. Barry, 524 F.3d at 724. We cannot reverse the Board’s factual findings unless
“any reasonable adjudicator would be compelled to conclude to the contrary.” INA
§ 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B); Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir.
2006).

                                             III.

A.       Whether the Board Erred in not Granting Mezo Equitable Tolling

         In past cases, we have declined to equitably toll the time period for filing motions
to reopen for two reasons: (1) where the petitioner failed to establish prejudice from
former counsel’s untimely appeal, see Scorteanu v. INS, 339 F.3d 407, 413 (6th Cir.
2003); and (2) where the petitioner failed to exercise diligence in pursuing his rights.
See Barry, 524 F.3d at 725. “[A]t a minimum, a petitioner seeking to resuscitate a
time-barred immigration appeal must establish due diligence.” Ajazi, 216 F. App’x at
519.

         The Board specifically cited (1) Mezo’s failure to retain an attorney to file her
original appeal until four days before the appeal filing deadline and (2) the fact that she
waited until four months after her motion to reconsider was denied to file her motion to
reopen as demonstrating that she did not exercise due diligence in meeting filing
deadlines.
No. 09-3336          Mezo v. Holder                                                  Page 7


        1.       Mezo’s Hiring of Sullivan

        The Board rejected Mezo’s appeal on the ground that “the motion does not
establish that due diligence was exercised . . . to hire the attorney (Sullivan).” While it
would have been better if Mezo had hired her attorney earlier than four days before her
filing deadline, the fact remains that she did hire Sullivan before the deadline had passed,
presumably relying on Sullivan’s representations that the appeal would be filed on time.
Had compliance with the deadline been impossible, Sullivan should not have taken the
case. And, had Sullivan overnighted or hand-delivered the appeal, it likely would have
been timely filed.

        When Mezo called Sullivan to follow up on the status of her appeal, Sullivan
allegedly told Mezo “everything was taken care of”, to “wait for a decision”, “that she
needed more time and that [Mezo] should not worry”, and then filed an untimely motion
to reconsider on Mezo’s behalf without informing Mezo that she had done so. Thus, it
is not unreasonable to assume that the same type of misrepresentation that characterized
Sullivan’s communications to Mezo regarding the status of her appeal may also have
tainted Sullivan’s communication to Mezo regarding Sullivan’s ability to file the original
appeal in a timely fashion. Indeed, it is difficult to understand why Mezo would have
paid Sullivan a partial attorney’s fee and filing fee if she did not believe that Sullivan
would timely file. We find no evidence in the record to support the Board’s conclusion
that Mezo’s untimely filed appeal resulted from her own lack of diligence. Thus, as
Mezo acted with due diligence in retaining Sullivan, the Board’s reliance upon Mezo’s
delay in initially hiring an attorney was misplaced.

        2.       Filing of Motion for Reopening

        The Board also found that, because Mezo waited until four months after her
motion to reconsider was denied to file her motion to reopen, she did not exercise due
diligence in meeting filing deadlines. Mezo responds that her late filing of the motion
to reopen resulted solely from the fact that Sullivan filed the motion to reconsider
without Mezo’s knowledge and that, when Mezo discovered the status of her appeal, she
acted quickly.
No. 09-3336            Mezo v. Holder                                                              Page 8


         “This Court has focused its due diligence inquiry . . . on petitioner’s conduct
before learning the status of his appeal.” Ajazi, 216 F. App’x at 519 (emphasis added)
(finding that petitioner did not act with due diligence when he failed to make any
inquiries regarding the status of his appeal for several years); see also Tapia-Martinez,
482 F.3d at 424 (finding that a petitioner failed to exercise due diligence when she was
alerted to, if not on actual notice of, her attorney’s failure to file a timely appeal and was
advised by the immigration judge to file a motion to reopen but waited over three years
thereafter to file the motion). We also consider whether a petitioner was diligent after
the petitioner learned of the need to file a motion to reopen but did not file until after the
deadline. See Scorteanu, 339 F.3d at 414 (delay after actual notice was not excused,
and petitioner was not diligent, where he mistakenly believed that he had to locate
former counsel and obtain an affidavit from him to establish ineffective assistance in
support of a motion to reopen before filing it). “Due diligence requires an alien to prove
that the delay in filing the motion to reopen was due to ‘an exceptional circumstance
beyond his control.’” Barry, 524 F.3d at 724 (quoting Tapia-Martinez, 482 F.3d at
423).6

         Given the evidence that Mezo hired an attorney and was lied to by that attorney,
combined with her lack of understanding of our Byzantine immigration laws, the likely
cause of her delay in moving to reopen was not a lack of due diligence. Viewed in light
of all her actions, it seems that, had Mezo been aware of her attorney’s misconduct, she
would have acted promptly to file her motion to reopen and otherwise diligently pursue
her claim, as she did when she finally learned of Sullivan’s misconduct. She filed her

         6
           While we have never ruled on a case where the lawyer’s behavior was so egregious and the
petitioner’s behavior was so sympathetic as here, see Barry, 524 F.3d at 725; Tapia-Martinez, 482 F.3d
at 423; Scorteanu, 339 F.3d at 414, in cases like Mezo’s, our sister circuits have found that the alien was
diligent in relying upon the assurances of counsel and have applied equitable tolling. Furthermore,
generally, only the Fifth, Eighth, and Eleventh Circuits have not adopted equitable tolling doctrines in
cases where the filing period was not met due to ineffective assistance of counsel. See Borges v. Gonzales,
402 F.3d 398 (3d Cir. 2005); Pervaiz v. Gonzales, 405 F.3d 488, 491 (7th Cir. 2005); Akwada v. Ashcroft,
113 F. App’x 532 (4th Cir. 2004); Itturribarria v. INS, 321 F.3d 889, 898-900 (9th Cir. 2003) (holding that
“[the petitioner] cannot be precluded from demonstrating ineffective assistance of counsel because he
reasonably relied upon and assumed his counsel’s competence” and “petitioners did not lack due diligence
because they relied on representatives who turned out to be unscrupulous liars”); Riley v. INS, 310 F.3d
1253, 1259 (10th Cir. 2002); Socop-Gonazalez v. I.N.S., 272 F.3d 1176, 1193 (9th Cir. 2001) (applying
equitable tolling in situations where an alien was unaware, despite due diligence, that he missed the
limitations period for filing a motion to reopen due to ineffective assistance of counsel); Jobe v. INS, 238
F.3d 96, 100-01 (1st Cir. 2001); Iavorski v. INS, 232 F.3d 124, 129 (2d Cir. 2000).
No. 09-3336         Mezo v. Holder                                                   Page 9


motion to reopen on June 25, 2008, less than a month after discovering Sullivan’s
malfeasance, a feat that can only be described as acting with due diligence.

        If the Board finds that Mezo’s allegations are true and that she was prejudiced
by Sullivan’s untimely filing, then the period during which Sullivan lied to Mezo about
the status of her appeal should be tolled until the time that Mezo reasonably could have
discovered Sullivan’s fraud. The clock would start again when Mezo discovered
Sullivan’s fraudulence—resulting in a timely filed motion to reopen.

        Because, based on the record before us, we find that no reasonable adjudicator
could conclude that Mezo did not exercise due diligence, we remand her claim to the
Board for further proceedings.

                                            IV.

        Accordingly, we find that the Board abused its discretion in finding that Mezo
was not diligent and remand the Board’s decision for further fact-finding to determine
the truth of Mezo’s allegations. If her allegations that she received ineffective assistance
of counsel are found to be true, and she demonstrates prejudice as a result of the
ineffective assistance, equitable tolling would apply, the motion to reopen would be
timely, and the Board would then rule on the motion to reopen on its merits. If not,
equitable tolling would not apply, the motion to reopen would not be timely and the
Board would lack jurisdiction to hear her motion to reopen.
