FILED
NOT FOR PUBLICATION JAN 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JEORGINA MORA PERDOMO, No. 06-73931
Petitioner, Agency No. A079-535-361
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 8, 2010
Pasadena, California
Before: B. FLETCHER, BERZON, and CALLAHAN, Circuit Judges.
Jeorgina Mora Perdomo (“Mora”) petitions for review of the Board of
Immigration Appeals’s (“BIA”) decision affirming an immigration judge’s (“IJ”)
denial of her December 16, 2005 motion to reopen removal proceedings on
account of 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 Circuit Rule 36-3.
1252(a). See also Nevarez Nevarez v. Holder, 572 F.3d 605, 607 (9th Cir. 2009).
We grant the petition for review and remand.
Because the BIA adopted the IJ’s decision, we review the IJ’s decision.
Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008). We review denial of a
motion to reopen for abuse of discretion. Socop-Gonzalez v. INS, 272 F.3d 1176,
1187 (9th Cir. 2001) (en banc). The BIA abuses its discretion when its decision is
“arbitrary, irrational, or contrary to law.” Ontiveros-Lopez v. INS, 213 F.3d 1121,
1124 (9th Cir. 2000).
The BIA recognized that Mora was entitled to equitable tolling of the
deadline to file a motion to reopen because she was prevented from timely filing
because of the ineffective assistance of her prior counsel, Early Hawkins, and a
notario posing as an attorney, Jose Coronado. See Iturribarria v. INS, 321 F.3d
889, 897 (9th Cir. 2003). It also recognized that Mora knew or should have known
that both Coronado and Hawkins perpetrated a fraud on her by May 2005, and
measured Mora’s due diligence from that date. We hold that the BIA abused its
discretion in concluding that Mora’s motion to reopen, even accounting for
equitable tolling, was untimely.
Once Mora learned of the fraud on her in May 2005, she promptly sought
the assistance of new counsel. See Fajardo v. INS, 300 F.3d 1019, 1022 (9th Cir.
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2002). In circumstances such as those presented here, a newly hired lawyer should
be afforded a reasonable period to obtain and review his client’s immigration file
so that he can provide competent legal advice. Cf. Albillo-De Leon v. Gonzales,
410 F.3d 1090, 1100 (9th Cir. 2005); Ontiveros-Lopez, 213 F.3d at 1125 (“While
[petitioner] may have been able to attest to his own understanding with his prior
counsel absent the record, he and his new counsel could not be expected to identify
the specifics of counsel’s deficient performance without reference to an accurate
and substantially complete record of the filings and proceedings before the IJ”).
Mora’s newly retained counsel acted diligently to obtain and review her file;
consequently, we equitably toll the beginning of the limitations period for filing the
motion to reopen until October 13, 2005, when Mora reviewed her file with new
counsel. Because the motion was filed within 180 days of reviewing the file, it
was timely. See 8 U.S.C. § 1229a(b)(5)(C)(i).
We also hold that the BIA abused its discretion in concluding that Mora’s
claim was barred because she failed to comply with the requirements of
Matter of Lozada, 19 I & N Dec. 637 (1988). Mora filed a complaint against her
former counsel with the state bar, and her former counsel conceded his deficiency
in failing to appear at the hearing where petitioner was ordered removed in
absentia. We conclude that Mora substantially complied with Lozada and that the
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purposes of Lozada have been fully served. See Morales Apolinar v. Mukasey, 514
F.3d 893, 896 (9th Cir. 2008); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th
Cir. 2002).
We GRANT the petition for review and REMAND to the BIA for further
proceedings consistent with this disposition.
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