                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                             FOR THE NINTH CIRCUIT                            OCT 31 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

BAYASGALAN TSERENOCHIR, AKA                      No. 10-73882
Bayasgalan Dserenochir; et al.,
                                                 Agency Nos.        A097-583-395
              Petitioners,                                          A097-583-396
                                                                    A097-583-397
  v.                                                                A097-583-398

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


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

                      Argued and Submitted October 8, 2014
                            San Francisco, California

Before: W. FLETCHER and WATFORD, Circuit Judges, and DUFFY, District
Judge.**

       1. The Board of Immigration Appeals (BIA) abused its discretion in

denying Bayasgalan Tserenochir’s motion to reopen as untimely. Tserenochir was

entitled to equitable tolling until March 25, 2010, when he consulted with his third

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
                                                                          Page 2 of 4
and current lawyer, because “despite all due diligence” he was “unable to obtain

[the] vital information” underlying his claim for reopening—the ineffectiveness of

his initial counsel. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir.

2001) (en banc). Our analysis in Ghahremani v. Gonzales, 498 F.3d 993 (9th Cir.

2007), forecloses the BIA’s finding that Tserenochir did not exhibit due diligence.

As in Ghahremani, Tserenochir hired new counsel after the BIA denied his initial

appeal, a “paradigmatic” example of due diligence. Id. at 1000. And as in

Ghahremani, that Tserenochir’s second lawyer did not tell Tserenochir about the

ineffectiveness of his first lawyer does not undermine Tserenochir’s claim of due

diligence. Id. Equitable tolling ceased in March 2010 when Tserenochir learned

of his initial counsel’s ineffectiveness, and Tserenochir filed his motion to reopen

on April 19, 2010, within the 90-day statutory window. See 8 U.S.C.

§ 1229a(c)(7)(C)(i).

      2. The BIA also abused its discretion in denying the motion to reopen on the

ground that Tserenochir was not prejudiced by his first lawyer’s deficient

performance. Counsel’s performance was “so inadequate that it may have affected

the outcome of the proceedings” in at least two ways. See Lin v. Ashcroft, 377

F.3d 1014, 1027 (9th Cir. 2004). First, Tserenochir’s initial lawyer met with him

for only 20 or 30 minutes before his hearing. Counsel’s lack of preparation left
                                                                         Page 3 of 4
Tserenochir “alone, bewildered, and unrehabilitated as a witness.” See id. In

particular, with more time, counsel might have noticed Tserenochir’s moderate

cognitive impairments and could have explained some of Tserenochir’s

nonsensical answers to the Immigration Judge (IJ).

      Second, even if the IJ had been inclined to conclude that Tserenochir’s

testimony alone did not establish a claim to asylum, competent counsel could have

bolstered Tserenochir’s claim using corroborating documents or witnesses.

Tserenochir’s wife and daughter witnessed Tserenochir’s arrest and beating, yet

Tserenochir’s first lawyer did not call them as witnesses at the hearing. And two

of the categories of corroborating documents we identified as missing in

Tserenochir’s first petition for review—medical records and records of political

activity—were readily available, yet Tserenochir’s first lawyer did not make any

effort to obtain them. See Dserenochir v. Holder, 365 F. App’x 825, 827 (9th Cir.

2010).

      Taken as a whole, the record indicates that Tserenochir has at least a

“plausible claim for relief,” which he should be allowed to present to an IJ without

interference by constitutionally deficient counsel. See Lin, 377 F.3d at 1031.

Accordingly, we grant Tserenochir’s petition for review and remand to the BIA

with instructions to reopen.
                        Page 4 of 4
GRANTED AND REMANDED.
