Martin Gutierrez v. Eric H. Holder Jr. , 411 F. App'x 68 ( 2011 )

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NOT FOR PUBLICATION JAN 20 2011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.
3 08-73431