                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 20 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MARTIN CALDERON GUTIERREZ,                       No. 08-73431

               Petitioner,                       Agency No. A091-534-876

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

               Respondent.



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

                             Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

       Martin Calderon Gutierrez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motions

to reconsider and reopen based on ineffective assistance of counsel. We have

jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
a motion to reconsider, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.

2005), and we grant the petition for review.

      The BIA abused its discretion in concluding that Gutierrez’s untimely

motion to reconsider was not subject to equitable tolling of the motions deadline.

See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (court recognizes tolling

of motions deadline during periods where petitioner is prevented from filing

because of deception, fraud, or error); Socop-Gonzalez v. INS, 272 F.3d 1176, 1193

(9th Cir. 2001) (en banc) (equitable tolling applies where an alien demonstrates

that he was ignorant of the filing deadline due to circumstances beyond his

control). The BIA concluded Gutierrez’s former counsel’s statements that the

BIA’s prior order was final and that Gutierrez had no basis for appeal were

“correct as a matter of law,” when in fact Gutierrez could have challenged the basis

of his removability based on the issuance of our decision in Camins v. Gonzales,

500 F.3d 872 (9th Cir. 2007). See 8 U.S.C. § 1252(a)(2)(D) (this court has

jurisdiction to review questions of law); 8 CFR § 1003.2(b)(1).

      In light of our disposition, we do not address Gutierrez’s contentions related

to the BIA’s denial of his motions to reopen and reissue. We remand for the BIA




                                          2                                    08-73431
to address Gutierrez’s motion to reconsider on the merits, upon which we express

no opinion.

      PETITION FOR REVIEW GRANTED; REMANDED.




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