Hardeep Singh v. Alberto R. Gonzales, Attorney General , 491 F.3d 1090 ( 2007 )

WALLACE, Circuit Judge,

concurring:

I agree with the majority’s jurisdictional determination, but write separately concerning the issue of equitable tolling. In denying Singh’s motion to reopen, the Board relied on Singh’s statement in his brief that he discovered Gupta’s ineffective assistance of counsel a few weeks after the Board’s March 2003 ruling. In my view, this is a finding by the Board on the discovery issue. Singh does not challenge this finding in his petition for review. Because he failed to make a timely effort to remedy the ineffective assistance after he discovered it, Singh’s petition for review must be denied.

The majority takes a different approach, which I question. They state that Singh “admits that he became suspicious of the possibility that Gupta was providing ineffective assistance of counsel when he spoke with his relatives,” but that Singh did not “definitively learn” of the ineffective assistance until he retained new counsel in September 2003. Singh’s affidavit attached to his brief in support of his motion to reopen does not indicate that he shared his relatives’ misgivings about Gupta’s performance at the time. The majority must, then, rely on Singh’s brief in support of his motion to reopen or his brief on appeal to this court. Both, however, go well beyond suspicion. They stipulate to actual “discovery” of the ineffective assistance a few weeks after the March 2003 ruling. The majority’s statements concerning the discovery issue are unsupported.

In any event, the majority must review the facts as found by the Board. See Fedunyak v. Gonzales, 477 F.3d 1126, 1127 (9th Cir.2007) (reviewing the Board’s findings for “substantial evidence”). The Board’s reliance on Singh’s statement in his brief in support of the motion to reopen meets the test. Accordingly, even if Singh “act[ed] with due diligence in discovering” the ineffective assistance, he does not qualify for equitable relief because he did not raise the issue before the Board within 90 days of the discovery. See Iturribarria v. I.N.S., 321 F.3d 889, 897 (9th Cir.2003).