184 F.3d 1097 (9th Cir. 1999)
RUBEN LOPEZ, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 97-70937
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted February 2, 1999Filed July 14, 1999

Curtis Pierce, Law Offices of Garish Sarin, Los Angeles, California, for the petitioner.
Jane Gomez and Mary Jane Candaux, Office of  Immigration Litigation, United States Department of Justice, Washington,  D.C., for the respondent.
Petition to Review a Decision of the Immigration and Naturalization Service. I & NS No. Atv-hgd-siy.
Before: Procter Hug, Jr., Chief Judge, James R. Browning  and John T. Noonan, Circuit Judges.
OPINION
HUG, Chief Judge:


1
Ruben Lopez appeals the Board of Immigration Appeals  ("BIA") denial of his motion to reopen an in absentia deportation order on the ground that his former "counsel " engaged in  fraud by posing as an attorney and provided ineffective assistance of counsel. This court has jurisdiction to review final  deportation orders pursuant to 8 U.S.C. S 1105a (1994 &  Supp. 1997).1 We conclude that the statutory time limit for  reopening is tolled by the fraudulent representations made by  Lopez's former "counsel." Consequently, we reverse and  remand.

PROCEDURAL AND FACTUAL BACKGROUND

2
Ruben Lopez ("Lopez"), a native and citizen of Mexico,  initially entered the United States without inspection on April  22, 1990. On April 17, 1995, Lopez retained an apparent law  office called Attorney Services to assist him in obtaining a  work permit. At Attorney Services Lopez met Noel, who  stated that he was an attorney and would assist Lopez. Lopez  paid Attorney Services $350 in cash for the "legal  representation." Noel informed Lopez that he would periodically receive official documents from the INS and that he  should bring those documents to Noel immediately so that he  could take care of the case.


3
Despite Lopez's request for a work permit, Noel filed an  application for political asylum. Shortly thereafter, Lopez was  scheduled for an asylum interview. Pursuant to Noel's  instructions, Lopez took the documentation to Noel for  review. Noel informed Lopez that he would appear on  Lopez's behalf for $100. Additionally, Noel advised Lopez  that he did not need to appear. Neither Lopez nor Noel  appeared at the asylum interview.


4
On August 24, 1995, the INS informed Lopez by mail that  his asylum application was denied, and the INS referred his  application to an Immigration Judge ("IJ") for a deportation  hearing. On October 27, 1995, an Order to Show Cause was  sent by mail to Lopez. Again, Lopez forwarded the documentation to his "attorney," Noel. Noel advised Lopez that he  would appear on his behalf, and that Lopez need not attend  the hearing. Lopez paid Noel an additional $400 in cash for  this appearance. Again, neither Lopez nor Noel appeared at  the deportation hearing, and on February 9, 1996, an IJ entered an in absentia order finding Lopez deportable as  charged.


5
After receiving notice by mail of the IJ's ruling of deportation in absentia, Lopez became doubtful of Noel's representations. After confronting Noel, Lopez contacted separate  counsel. Through this process Lopez learned for the first time  that Noel is not an licensed attorney, but rather a notary public. On September 24, 1996, Lopez, with the assistance of his  newly acquired and properly admitted legal counsel, filed a  motion to reopen his deportation proceedings. In his motion,  Lopez explained that his failure to appear was due to the  "exceptional circumstances" of ineffective assistance of counsel, as Noel had engaged in fraud by posing as an attorney,  thereby compounding Noel's failure to properly advise Lopez  to appear at the hearings and failing to make any appearances  on Lopez's behalf.


6
Pursuant to Matter of Lozada, 19 I. & N. Dec. 637, 639  (BIA), aff'd, 857 F.2d 10 (1st Cir. 1988), Lopez's motion pro vided evidence of the agreement between Lopez and his  "counsel" Noel. Lopez also attempted to comply with the  additional requirements of Lozada by notifying Noel of the  dispute regarding the adequacy of his representation. No formal complaint was filed with the State bar, as Noel is not a  licensed attorney. Lopez did notify the police about the situation, but the police refused to take a police report.


7
On November 12, 1996, the IJ denied Lopez's motion to  reopen after concluding that Lopez failed to strictly adhere to  Lozada, by failing to provide any evidence of his complaint  to Noel, and failing to file a formal complaint with the State bar. Further, the IJ concluded that Lopez failed to demonstrate  actual prejudice, as he failed to state in his motion whether he  would voluntarily depart the United States at his own  expense.


8
On December 10, 1996, Lopez appealed the IJ's ruling to  the BIA. On July 25, 1996, the BIA found that pursuant to 8  U.S.C. S 1252b(c)(3)(A) Lopez was required to file his  motion within 180 days of the IJ's decision.2 Consequently,  the BIA concluded that Lopez's motion was untimely, and  that he was statutorily ineligible to have his deportation proceedings reopened. On August 22, 1997, Lopez filed his  timely petition for review, pursuant to IIRIRA S 309(c)(4)(C).


9
Lopez appeals to this Court, requesting reversal of the BIA  decision and reopening of his deportation proceedings, so that  he may request voluntary departure, thereby avoiding the 5year limitation on seeking discretionary relief under 8 U.S.C.  S 1252b(e).

DISCUSSION

10
This court reviews de novo the BIA's determination of  purely legal questions, including the BIA's interpretation of  the Immigration and Nationality Act. Bui v. INS , 76 F.3d 268,  269 (9th Cir. 1996).


11
Immigration and Nationality Act ("INA") S 242B(c)(3)(A),  8 U.S.C. S 1252b(c)(3) (1994) provides that a motion to  reopen may be "filed within 180 days after . . .[an] order of  deportation if the alien demonstrates that the failure to appear  was because of exceptional circumstances . . . ."


12
Lopez contends that his motion to reopen is based on the  exceptional circumstance of ineffective assistance of counsel.  Further, Lopez asserts that the statute of limitations does not  bar his petition for reopening as Lopez is a victim of fraud  and ineffective assistance of counsel which was concealed  beyond the statutory period by Lopez's good faith reliance on  his "attorney's" fraudulent representations.


13
The INS argues that S 242B(c)(3)(A) unambiguously  requires petitions for reopening to be filed within 180 days of  the IJ's deportation order. The INS contends that the BIA did  not err in dismissing Lopez's petition, as there is no exception  to the statute of limitations provided in S 242B(c)(3)(A). We  disagree.


14
"[T]his Court long ago adopted as its own the old chancery rule that where a plaintiff has been injured by fraud and  `remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin  to run until the fraud is discovered, though there be no special  circumstances or efforts . . . to conceal it from the knowledge of the other party.' " Holmberg v. Armbrecht, 327 U.S. 392,  397 (1946) (quoting Bailey v. Glover, 88 U.S. (21 Wall.) 342,  348 (1874)); Federal Election Comm'n v. Williams , 104 F.3d  237, 240 (9th Cir. 1996). "This equitable doctrine is read into  every federal statute of limitation." Holmberg, 327 U.S. at  397; Federal Election Comm'n, 104 F.3d at 240. (emphasis  added).3


15
We find this equitable doctrine particularly applicable  in this case. Lopez initiated these proceedings by seeking an  attorney for assistance in obtaining a work permit. Rather than  obtaining a lawyer, Lopez was beguiled by Noel, a notary  public who represented himself to Lopez as a lawyer. Rather  than filing an application for a work permit, Noel filed a petition for political asylum. Furthermore, Noel advised Lopez  that he did not need to appear at any of the hearings, as Noel  would appear on his behalf. In addition to Noel's incorrect  legal advice, Noel also failed to attend any of Lopez's hearings, despite receiving $850 expressly for this purpose.  Lopez's reasonable reliance on Noel's fraudulent legal representation continued after the in absentia order, as Noel offered  to apply for "amnesty" on Lopez's behalf for an additional  fee. As a consequence of Noel's deception Lopez filed his  petition for reopening 16 days late, with assistance of newly  acquired counsel, requesting voluntary departure. We conclude that the statute of limitations to reopen an order of  deportation is equitably tolled where the alien's late petition  is the result of the deceptive actions by a notary posing as an  attorney. Additionally, we find such egregious conduct worthy of investigation and possible sanction pursuant to INS  regulations. See 8 C.F.R. S 292.3(a)(4), (15).


16
We note that Lopez's claim of ineffective assistance of  counsel appears to have merit. To establish ineffective assistance of counsel in a motion to reopen, an alien must: 1) provide an affidavit describing in detail the agreement with  counsel; 2) inform counsel of the allegations and afford counsel an opportunity to respond; and 3) report whether a complaint of ethical or legal violations has been filed with the  proper authorities, and if not why not. See Matter of Lozada,  19 I. & N. Dec. at 639. This insures that the record contains  the "essential information" necessary to "evaluate the  substance" of the alien's claim. Id.


17
Further, the alien must show that he was prejudiced by  his representative's performance. Id. at 638; Mohsseni Behbahani v. INS, 796 F.2d 249, 251 (9th Cir. 1986). To be eligible  for voluntary departure, an alien must show that: 1) he has  been a person of good moral character for the past five years;  2) he is willing to depart the United States; and 3) he is able to depart at his own expense. See INA S 244(e); 8 U.S.C.  S 1254(e) (1970).


18
It appears that Lopez's petition has merit as Noel's  actions served to prevent Lopez from requesting voluntary  departure, relief available to Lopez but for Noel's deception.  Absent this deception it appears that Lopez would be eligible  for voluntary departure.4


19
In light of our analysis, we need not address Lopez's due  process claim. We grant Lopez's petition for review and  remand to the BIA for further proceedings consistent with this  opinion.


20
PETITION FOR REVIEW GRANTED. REMANDED  FOR FURTHER ACTION CONSISTENT WITH THIS  OPINION.



Notes:


1
 Because Lopez filed his petition prior to the effective date of the Illegal  Immigration Reform and Immigrant Responsibility Act of 1996  ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546, and the final order  of deportation was entered after October 30, 1996, we apply IIRIRA's  "transitional changes in judicial review". See Kalaw v. INS, 133 F.3d  1147, 1150 (9th Cir. 1997); IIRIRA S 309(c)(4), 110 Stat. at 3009-626.  However, IIRIRA's "transitional changes in judicial review" do not effect  the outcome of this case. See IIRIRA S 309(c)(1), 110 Stat. at 3009-625.


2
 8 U.S.C. S 1252b was repealed by IIRIRA, S 308(b)(6), Pub. L. No.  104-208, 110 Stat. 3009-546, 3009-615, whose rules do not apply to aliens  such as Lopez who were in exclusion or deportation proceedings as of  April 1, 1997, see id. S 309(c)(1), 110 Stat. at 3009-625.


3
 While we recently noted in Singh-Bhathal v. INS, 170 F.3d 943, 946  (9th Cir. 1999), that there are no exceptions to section 1252b(c)(3)(A)'s  statutory time bar, our analysis was limited to whether an exception can  be reasonably read into the plain language of S 1252b(c)(3)(A). Our holding in Singh-Bhathal does not eliminate the doctrine of equitable tolling  in Immigration cases. See generally Balogun v. INS, 9 F.3d 347, 351 (5th  Cir. 1993).


4
 In addition, the BIA has held that an alien cannot be denied discretionary relief without receiving oral notice of the consequences of failing to  appear at his deportation hearing. In In re M-S-, Interim Decision 3369  (BIA 1998) the BIA concluded that oral notice is required to eliminate an  alien's right to discretionary relief: voluntary departure, suspension of  deportation, or adjustment of status. See also  8 U.S.C. S 1252b(e). "We  find that the requirements for rescission of an in absentia order are inapplicable to a motion to reopen that does not seek rescission of that order . . . .  To rule otherwise would render surplusage the requirement of section  242B(e)(1) that the oral warnings be given before the consequences  ensue." In re M-S-, Interim Decision 3369 at 8-9; see also Lahmidi v. INS,  149 F.3d 1011 (9th Cir. 1998) ("[T]he five year exclusion set forth in subsection (e) [of 8 U.S.C. S 1252b] is not effective unless the alien was  given the proper notice under subsection (a)(2) as well as oral notice."  (emphasis added)). Applying the BIA's decision in In re M-S-, since  Lopez did not receive oral notice of the consequences of failing to appear,  he is not precluded from discretionary relief.


