Shams v. Holder

NOT FOR PUBLICATION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