Aghabalyan v. Mukasey ( 2008 )

MEMORANDUM ^**

Lead petitioner Hovhannes Aghabalyan and his family, natives and citizens of Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their motion to reopen removal proceedings due to ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of discretion, Siong v. INS, 376 F.3d 1030, 1036 (9th Cir.2004), we grant the petition for review and remand.

After the IJ denied Aghabalyan’s applications for asylum, withholding of removal and protection under the Convention Against Torture, his former counsel filed an untimely notice of appeal with the BIA, and the BIA dismissed for lack of jurisdiction. Through new counsel, Aghabalyan then filed a series of motions to reopen claiming ineffective assistance of counsel. The BIA upheld the denial of Aghabalyan’s last motion to reopen, stating that “[t]he period to appeal to this Board is jurisdictional, so equitable tolling based on a claim of ineffective assistance of counsel does not apply.” The BIA is incorrect in stating that the untimely filing of a notice of appeal to the BIA cannot be excused by ineffective assistance of counsel. See Siong, 376 F.3d at 1038 (instructing the BIA to reopen proceedings where, inter alia, the failure to file a timely notice of appeal was obvious ineffective assistance of counsel).

We remand for the BIA to reconsider whether Aghabalyan’s claim of ineffective assistance of counsel warrants reopening.

PETITION FOR REVIEW GRANTED; REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.