                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          MAR 30 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

DJAFAR SHAMS,                                    No. 07-72244

               Petitioner,                       Agency No. A078-670-244

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

               Respondent.



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

                             Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

       Djafar Shams, a native and citizen of Iran, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order denying his motion to reopen proceedings

due to ineffective assistance of counsel. We have jurisdiction under 8 U.S.C.




          *
             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).
§ 1252. Reviewing for abuse of discretion, Ghahremani v. Gonzales, 498 F.3d

993, 997 (9th Cir. 2007), we grant the petition for review.

      The BIA abused its discretion by refusing to equitably toll the time and

number bars for Shams’s motion to reopen despite his demonstrated due diligence

in discovering and attempting to redress the ineffectiveness of his former attorneys.

See id. at 999-1000 (petitioner showed due diligence where he “demonstrated a

steadfast pursuit of his case” even while being represented by deficient counsel,

and quickly filed a motion to reopen after retaining competent counsel).

      We therefore grant the petition for review and remand to the BIA for

consideration of the merits of Shams’s ineffective assistance of counsel claim. See

INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam).

      PETITION FOR REVIEW GRANTED; REMANDED.




                                          2                                   07-72244
