Avagyan v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ELZA AVAGYAN, 
Petitioner, No. 06-73982
v.
 Agency No.
A095-193-352
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
December 8, 2010—Pasadena, California

Filed July 1, 2011

Before: Betty B. Fletcher, Marsha S. Berzon, and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge B. Fletcher;
Dissent by Judge Callahan

8931
8934 AVAGYAN v. HOLDER

COUNSEL

Artem M. Sarian, Esq., Glendale, California, for the peti-
tioner.
 AVAGYAN v. HOLDER 8935
Edward John Duffy, United States Department of Justice,
Office of Immigration Litigation, Washington, D.C., for the
respondent.

OPINION

B. FLETCHER, Circuit Judge:

Elza Avagyan petitions for review of the Board of Immi-
gration Appeals’s (BIA’s) denial as untimely of her motion to
reopen removal proceedings to apply for adjustment of status,
on account of ineffective assistance of counsel. We have juris-
diction under 8 U.S.C. § 1252(a)(2)(D). See De Martinez v.
Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004). The denial of a
motion to reopen is reviewed for abuse of discretion. Id. We
grant the petition for review and remand to the BIA for fur-
ther proceedings consistent with this opinion.

I.

Avagyan, a seventy-one year old native of Turkmenistan
and a citizen of Armenia, came to the United States on a visi-
tor’s visa in March 2001. She overstayed her visa and filed an
application for asylum and withholding of removal on Octo-
ber 16, 2001, stating that she had been persecuted in Armenia
due to her political activities. The INS charged Avagyan with
removal on January 2, 2002.1 Avagyan’s daughter, Naira Var-
tanyan, has lived in the United States since 1989, and became
a naturalized United States citizen on March 28, 2003.

In April 2002, Avagyan retained Ron Martinez (a notario)2
1
“The INS ceased to exist in 2003, and most of its functions were trans-
ferred to the Department of Homeland Security” and Immigration and
Customs Enforcement. See, e.g., Morales-Izquierdo v. Gonzales, 486 F.3d
484, 489 n.7 (9th Cir. 2007).
2
The term “notario” or “notary” in our immigration case law refers to
individuals who either (a) hold themselves out as immigration law experts,
8936 AVAGYAN v. HOLDER
and Joel Spence (an attorney) to represent her. Avagyan com-
municated primarily with Martinez, who told her that Spence
would represent her for $2000. Avagyan first met Spence at
a removal hearing on April 16, 2002. He did not ask her any
questions about her case. The Immigration Judge (IJ) set
Avagyan’s removal hearing for November 5, 2003.

Avagyan had no contact with Spence between April 16,
2002 and November 3, 2003; during that time, she met Marti-
nez once, for the sole purpose of paying him $750 in attor-
ney’s fees. On November 3, 2003, two days before Avagyan’s
scheduled hearing, she met Spence in the foyer of an office
building. Spence asked Avagyan whether she had any money
and whether she wanted to continue the case. When Avagyan
insisted on proceeding with the hearing, Spence instructed her
to meet him in court and “be ready.” He did not ask any ques-
tions about her case, describe the hearing process, help pre-
pare Avagyan to testify, or provide information about asylum
law.

Prior to November 3, 2003, Avagyan asked Martinez if
Vartanyan, as a United States citizen, could help her stay in
the country. Martinez told her that if the IJ denied Avagyan’s
application for asylum and withholding of removal, then
Avagyan could get a green card because of Vartanyan’s citi-
zenship. Martinez never informed Avagyan that because she
was in removal proceedings, the IJ had exclusive jurisdiction
over any applications for adjustment of status. Nor did Marti-
nez inform Avagyan that, even if she had a prima facie valid
visa application pending, she would be subject to deportation

even though they are not attorneys; or (b) act as gatekeepers for “appear-
ance attorneys” with limited or no knowledge of their client’s case. See,
e.g., Mendeza-Mazariegos v. Mukasey, 509 F.3d 1074, 1077 n.4 (9th Cir.
2007).
 AVAGYAN v. HOLDER 8937
and likely denied the opportunity to apply for adjustment of
status if the IJ denied her asylum application.3

On November 5, 2003, after a hearing, the IJ issued an oral
decision denying Avagyan’s application for asylum and with-
holding of removal and ordering her removed to Armenia.
After the IJ’s decision, Avagyan retained Mr. Gevorg (whom
she believed was an attorney specializing in immigration
appeals) to file an appeal to the BIA and to file a petition for
an immediate relative visa that she believed would, if granted,
enable her to apply for adjustment of status. Avagyan filed a
notice of appeal on November 24, 2003.

On November 25, 2003, one day after Avagyan appealed
the IJ’s decision, Vartanyan filed an immediate relative visa
petition on Avagyan’s behalf. Gevorg told Avagyan that she
needed to wait until the petition was approved to apply for
adjustment of status. Avagyan did what Gevorg advised: she
waited.

The BIA denied Avagyan’s appeal on February 11, 2005.
3
An alien who is the parent of a United States citizen is eligible for an
immediate relative visa. 8 U.S.C. §§ 1151(a); 1151(b)(2)(A)(i). In the
ordinary case, once the alien’s visa has been approved, she may apply for
an adjustment of status to lawful permanent resident if she is physically
present in the United States and meets other requirements, not relevant
here. See 8 U.S.C. § 1255(a), (c). If, however, the alien is in removal pro-
ceedings, she must file her application for adjustment of status in immigra-
tion court. Though the IJ has exclusive jurisdiction over the application for
adjustment of status, the United States Bureau of Citizenship and Immi-
gration Services (USCIS—formerly part of INS) has exclusive jurisdiction
to adjudicate the visa petition. See 8 C.F.R. §§ 245.2(a), 1245.2(a)(1)(i).
Accordingly, if an alien in removal proceedings may be eligible for adjust-
ment of status but does not yet have an approved visa petition, she may
request a continuance of removal proceedings while USCIS adjudicates
the visa petition. Dawoud v. BIA, 561 F.3d 31, 33 n.1 (1st Cir. 2009). Typ-
ically, the IJ will continue removal proceedings until USCIS adjudicates
the visa petition. Oral Argument at 7:30-8:45 (counsel for petitioner);
20:30-20:45 (counsel for Government).
8938 AVAGYAN v. HOLDER
Significantly, the BIA did not specifically inform Avagyan
that a final order of removal had been entered. The order said,
in its entirety: “The Board affirms, without opinion, the
results of the decision below. The decision below, therefore,
is the final agency determination.”

Prior to December 2005, Avagyan consulted with present
counsel, who, on December 1, 2005, entered a notice of
appearance and requested Avagyan’s immigration file to
review. Counsel was given access to the file at the immigra-
tion court on January 4, 2006. On January 17, 2006, he
reviewed the file with Avagyan and informed her that Spence,
Martinez, and Gevorg had rendered ineffective assistance. He
also informed Avagyan that Gevorg was not an attorney. On
March 16, 2006, Avagyan, through counsel, informed Spence
of the allegations against him. Spence did not reply. On
March 27, 2006, Avagyan filed a complaint against Spence
with the state bar.

On April 5, 2006 (eighty-five days after reviewing her file
with present counsel), Avagyan filed a motion to reopen with
the BIA, claiming that Spence, Martinez, and Gevorg ren-
dered ineffective assistance of counsel. Specifically, Avagyan
alleged that Spence and Martinez rendered ineffective assis-
tance in preparing her asylum and withholding of removal
claims. Further, she alleged that Spence, Martinez, and
Gevorg failed to advise her that she needed to file a visa peti-
tion and application for adjustment of status before her
removal proceedings concluded.

On July 17, 2006, the BIA denied the motion as untimely.
The Board held that Avagyan had complied with the require-
ments of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988),4
4
Lozada requires a petitioner seeking to reopen based on a claim of inef-
fective assistance of counsel to:
1) submit an affidavit explaining his agreement with former
counsel regarding his legal representation, 2) present evidence
 AVAGYAN v. HOLDER 8939
but found that Avagyan “ha[d] not acted with due diligence”
and “failed to explain her 14 ½ month delay in filing her pres-
ent motion following the Board’s dismissal of her appeal.”
The Board noted that the motion to reopen was filed two and
a half years after the end of Spence’s representation, and con-
cluded that Avagyan “knew what documents were submitted
by [Spence] into evidence before the Immigration Judge.” It
stated that Avagyan “fails [to] explain the delay in seeking
new counsel if she was dissatisfied with the representation
that she had previously obtained.” The BIA did not, however,
specifically address Avagyan’s diligence with respect to her
claim that prior counsel ineffectively advised her on adjust-
ment of status. Avagyan timely petitioned for review.

II.

[1] “Although there is no Sixth Amendment right to coun-
sel in a deportation proceeding, the due process guarantees of
the Fifth Amendment ‘still must be afforded to an alien peti-
tioner.’ ” Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.
2005) (quoting Singh v. Ashcroft, 367 F.3d 1182, 1186 (9th
Cir. 2004)). This court has long recognized that “[i]neffective
assistance of counsel in a deportation proceeding is a denial
of due process under the Fifth Amendment if the proceeding
was so fundamentally unfair that the alien was prevented from
reasonably presenting his case.” Ray v. Gonzales, 439 F.3d
583, 587 (9th Cir. 2006) (quoting Lopez v. INS, 775 F.3d
1015, 1017 (9th Cir. 1985)); see also Maravilla Maravilla v.
Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004); Iturribarria v.

that prior counsel has been informed of the allegations against her
and given an opportunity to respond, 3) either show that a com-
plaint against prior counsel was filed with the proper disciplinary
authorities or explain why no such complaint was filed.
Iturribarria v. INS, 321 F.3d 889, 900 (9th Cir. 2003). Although, as a gen-
eral rule, petitioners must comply with Lozada, failure to do so “is not
necessarily fatal to a motion to reopen.” Castillo-Perez v. INS, 212 F.3d
518, 525 (9th Cir. 2000).
8940 AVAGYAN v. HOLDER
INS, 321 F.3d 889, 899 (9th Cir. 2003); Ortiz v. INS, 179 F.3d
1148, 1153 (9th Cir. 1999). If the ineffective assistance of an
alien’s counsel prevents him from timely filing a motion to
reopen, counsel has prevented the alien from reasonably pre-
senting his case and denied him due process. Consequently,
we “recognize[ ] equitable tolling of deadlines and numerical
limits on motions to reopen . . . during periods when a peti-
tioner is prevented from filing because of a deception, fraud,
or error, as long as the petitioner acts with due diligence in
discovering the deception, fraud or error.” Iturribarria, 321
F.3d at 897.

The Government argues that recent Supreme Court deci-
sions “have called sharply into question” the ability of aliens
in removal proceedings to invoke equitable tolling based on
ineffective assistance of counsel. Relying on Wallace v. Kato,
549 U.S. 384 (2007), and Lawrence v. Florida, 549 U.S. 327
(2007), the Government argues that because an alien in
removal proceedings has no constitutional right to counsel,
she cannot “assert a due process-based claim of ineffective
assistance founded on her counsel’s alleged failures in
removal proceedings.”

A three-judge panel cannot reconsider or overrule circuit
precedent unless “an intervening Supreme Court decision
undermines an existing precedent of the Ninth Circuit, and
both cases are closely on point.” Norita v. N. Mariana
Islands, 331 F.3d 690, 696 (9th Cir. 2003) (emphasis
removed, quoting United States v. Gay III, 967 F.2d 322, 327
(9th Cir. 1992)); see also Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc) (holding that a higher court
decision is controlling when it “undercut[s] the theory or rea-
soning underlying the prior circuit precedent in such a way
that the cases are clearly irreconcilable”). We conclude that
neither Wallace nor Lawrence undermine our existing prece-
dent in this area, particularly in light of the Supreme Court’s
recent decision in Holland v. Florida, 130 S. Ct. 2549 (2010).
 AVAGYAN v. HOLDER 8941
Wallace and Lawrence are “on point” only to the extent
that they reiterate that equitable tolling is a remedy to be
applied in exceptional circumstances. Wallace responded to
the argument that the statute of limitations for a federal false
arrest claim should be equitably tolled so long as petitioner
was defending his criminal case in state court by noting that
“[e]quitable tolling is a rare remedy to be applied in an
unusual circumstances, not a cure-all for an entirely common
state of affairs.” 549 U.S. at 396. Lawrence held that
“[a]ttorney miscalculation is simply not sufficient to warrant
equitable tolling, particularly in the postconviction context
where prisoners have no constitutional right to counsel.” 549
U.S. at 336-37 (citing Coleman v. Thompson, 501 U.S. 722,
756-57 (1991)).5 Neither case even considered whether indi-
viduals who have no constitutional right to counsel are cate-
gorically precluded from invoking equitable tolling on the
basis of ineffective assistance of counsel, and thus are not
“clearly irreconcilable” with our equitable tolling jurispru-
dence. Miller, 355 F.3d at 900.

The Supreme Court’s decision in Holland further supports
our conclusion that equitable tolling is based on consider-
ations of fundamental fairness that apply regardless of
whether petitioner has a constitutional right to counsel. Hol-
land concluded that federal courts could equitably toll the
5
The pages cited in Coleman establish that a prisoner has no right to
counsel “to appeal a state collateral determination of his claims of trial
error.” 501 U.S. at 756-57. Holland reiterated that Coleman was a “case
about federalism.” 130 S. Ct. at 2533 (quoting Coleman, 501 U.S. at 726).
Thus, Coleman considered “whether federal courts may excuse a petition-
er’s failure to comply with a state court’s procedural rules.” 130 S. Ct. at
2563. Holland explained that “[e]quitable tolling, by contrast, asks
whether federal courts may excuse a petitioner’s failure to comply with
federal timing rules, an inquiry that does not implicate a state court’s
interpretation of state law.” Id. Coleman is similarly irrelevant to equitable
tolling in immigration cases, which concerns whether a federal executive
agency and federal courts may excuse petitioner’s failure to comply with
federal timeliness rules.
8942 AVAGYAN v. HOLDER
statute of limitations for filing a habeas petition under 28
U.S.C. § 2254 because petitioner’s attorney failed to satisfy
professional standards of care. 130 S. Ct. at 2563-64. The
Court held that “at least sometimes, professional misconduct
. . . [could] amount to egregious behavior and create an
extraordinary circumstance that warrants equitable tolling.”
Id. Conspicuously absent from the majority opinion in Hol-
land is any suggestion that equitable tolling is only warranted
when petitioner has a constitutional right to counsel — even
though, like individuals in immigration proceedings, state
prisoners do not have a constitutional right to counsel when
mounting collateral attacks upon the judgment of a state court.
See Pennsylvania v. Finley, 481 U.S. 551, 555 (1986). Two
justices dissented in Holland, and did so on the ground that
when an individual has no constitutional right to counsel, he
is “out of luck” if his counsel files an appeal too late. 130 S.
Ct. at 2571 (Scalia, J., dissenting, joined by Thomas, J.). The
Holland majority also specifically distinguished Lawrence as
a case involving “a garden variety claim of excusable neglect”
that did not create extraordinary circumstances justifying
equitable tolling. 130 S. Ct. at 2564 (citation omitted).

[2] We conclude that neither Wallace nor Lawrence under-
mines our application of equitable tolling to late-filed motions
to reopen removal proceedings. Holland establishes even if a
litigant is not constitutionally entitled to counsel, principles of
equity can justify tolling a limitations period where counsel’s
behavior is sufficiently egregious.

III.

We next consider whether the BIA abused its discretion in
holding that Avagyan is not entitled to equitable tolling
because she failed to exercise due diligence in discovering the
fraud or error that prevented her from timely filing a motion
to reopen. See 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.”
 AVAGYAN v. HOLDER 8943
Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000)
(citation omitted).

The BIA and this court are under an affirmative obligation
to “accept as true the facts stated in [petitioner’s] affidavit in
ruling upon his motion to reopen unless [we find] those facts
to be inherently unbelievable.” Ghahremani v. Gonzales, 498
F.3d 993, 999 (9th Cir. 2007) (quoting Maroufi v. INS, 772
F.2d 597, 600 (9th Cir. 1985)). Because the BIA made no
finding that the facts alleged in Avagyan’s affidavit are inher-
ently unbelievable, we accept them as true and undisputed. Id.

A.

A motion to reopen must generally be filed “within ninety
days of the date of entry of a final administrative order of
removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). A motion filed
beyond that deadline is untimely, unless subject to equitable
tolling. To reiterate, a petitioner is entitled to equitable tolling
of the deadline “during periods when a petitioner is prevented
from filing because of a deception, fraud, or error, as long as
petitioner acts with due diligence in discovering the decep-
tion, fraud or error.” Iturribarria, 321 F.3d at 897. We do not
require petitioner to act with the “maximum diligence possi-
ble” — only “due” or “reasonable” diligence. Cf. Souliotes v.
Evans, 622 F.3d 1173, 1175, 1178 (9th Cir. 2010) (describing
the due diligence standard for habeas petitions in 28 U.S.C.
§ 2244(d)(1)(D)); Wims v. United States, 225 F.3d 186, 190
n.4 (2d. Cir. 2000) (describing the due diligence standard in
28 U.S.C. § 2255(4)).

Our review of petitioner’s diligence must be fact-intensive
and case-specific, assessing the reasonableness of petitioner’s
actions in the context of his or her particular circumstances.
Rodriguez-Lariz v. INS, 282 F.3d 1218, 1225 (9th Cir. 2002).
We recognize that alien petitioners are often in “an extremely
vulnerable position as the subjects of pending deportation pro-
ceedings.” Id. Furthermore, “[t]he proliferation of immigra-
8944 AVAGYAN v. HOLDER
tion laws and regulations has aptly been called a labyrinth that
only a lawyer could navigate.” Biwot v. Gonzales, 403 F.3d
1094, 1098 (9th Cir. 2005). We cannot penalize individuals in
such circumstances for reasonably relying on the advice of
counsel, even if that counsel turns out to have been incompe-
tent or predatory. Iturribarria, 321 F.3d at 899; Rodriguez-
Lariz, 282 F.3d at 1225.

[3] In order to assess whether petitioner exercised due dili-
gence, we consider three issues. First, we determine if (and
when) a reasonable person in petitioner’s position would sus-
pect the specific fraud or error underlying her motion to
reopen. See Ghahremani, 498 F.3d at 999; Singh v. Gonzales,
491 F.3d 1090, 1096 (9th Cir. 2007); Albillo-De Leon v. Gon-
zales, 410 F.3d 1090, 1100 (9th Cir. 2005). Second, we ascer-
tain whether petitioner took reasonable steps to investigate the
suspected fraud or error, or, if petitioner is ignorant of coun-
sel’s shortcomings, whether petitioner made reasonable
efforts to pursue relief. See Ghahremani, 498 F.3d 996-97;
Ray, 439 F.3d at 589 n.5. Typically, an alien is diligent if he
continues to pursue relief and relies on the advice of counsel
as to the means of obtaining that relief. See, e.g, Mejia-
Hernandez v. Holder, 633 F.3d 818, 824-25 (9th Cir. 2011);
Ray, 439 F.3d at 589 n.5; id. at 590. Third, we assess when
the tolling period should end; that is, when petitioner defini-
tively learns of the harm resulting from counsel’s deficiency,
or obtains “vital information bearing on the existence of his
claim.” Albillo-De Leon, 410 F.3d at 1100; Fajardo, 300 F.3d
at 1022; see also Socop-Gonzalez, 272 F.3d at 1194. In many
cases, this occurs when the alien obtains a complete record of
his immigration proceedings and is able to review that infor-
mation with competent counsel.6 See Ghahremani, 498 F.3d
6
It is an open question whether the tolling period extends until the alien
complies with the requirements of Lozada, 19 I. & N. Dec. 637, or
whether the time during which an alien is diligently working to comply
with Lozada should be counted against the ninety days normally given to
file a motion to reopen. See Valeriano v. Gonzales, 474 F.3d 669, 672 n.3
 AVAGYAN v. HOLDER 8945
at 997, 999; Singh, 491 F.3d at 1096; Albillo-De Leon, 410
F.3d at 1100; Iturribaria, 321 F.3d at 899; Fajardo, 300 F.3d
at 1022.

B.

Avagyan’s motion to reopen alleges two distinct forms of
ineffective assistance, each of which provides an independent
ground to reopen her removal proceedings. First, she alleges
that Spence and Martinez were deficient in preparing her asy-
lum claim for the removal hearing. If the BIA granted Avagy-
an’s motion to reopen on this ground, Avagyan would be
permitted to introduce evidence that was unavailable at the
removal hearing because of Spence’s and Martinez’s deficient
representation. Second, Avagyan alleges that Spence, Marti-
nez, and Gevorg gave her erroneous advice on adjustment of
status. If the BIA granted Avagyan’s motion to reopen on this
ground, it would permit her to submit an application for
adjustment of status to the IJ, and request that the IJ continue
her removal hearing until USCIS adjudicated her visa applica-
tion.7 We independently assess Avagyan’s diligence with
respect to each claim.

1. Counsel’s Ineffective Preparation of Asylum Claim

[4] We hold that, under the circumstances, Avagyan first
had reason to suspect Spence’s and Martinez’s deficient per-
formance with respect to her asylum petition when the BIA

(9th Cir. 2007); see also Ray, 439 F.3d at 589 n.5 (implying that filing a
complaint with the state bar was part of petitioner’s due diligence).
Because we conclude that Avagyan filed her motion to reopen within
ninety days of first suspecting prior counsels’ deficiencies with respect to
her adjustment of status claim, we need not resolve the issue at this time.
7
The IJ’s decision to continue removal proceedings is discretionary. 8
C.F.R. § 1003.29. We review an IJ’s denial of a continuance for abuse of
that discretion. See, e.g., Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.
2009).
8946 AVAGYAN v. HOLDER
denied her appeal in February 2005. See Rodriguez-Lariz, 282
F.3d at 1225 (holding that petitioners were on notice of coun-
sel’s deficient representation when they received denial of a
motion for reconsideration, prepared by counsel). Avagyan’s
appeal to the BIA focused exclusively on the merits of her
asylum petition, and its denial would have put a reasonable
person in Avagyan’s position on notice that something was
wrong with Spence’s and Martinez’s preparation for the
removal hearing.8 Accordingly, we measure Avagyan’s dili-
gence from that date.

[5] Apparently, after February 2005, Avagyan took no
affirmative steps to investigate whether Spence and Martinez
adequately prepared her asylum claim. See Singh, 491 F.3d at
1097. Further, despite the fact that she had already retained
Gevorg, who she thought was an attorney, Avagyan does not
claim that she discussed the BIA’s denial of her appeal with
him and perhaps had been informed that Spence and Martinez
had performed adequately, or that there was nothing to be
done to remedy their deficiencies, or that Gevorg would cor-
rect the error. Cf. Mejia-Hernandez, 633 F.3d at 824-25 (hold-
ing that petitioner was diligent when, after his motion was
denied for lack of a filing fee, he discussed the issue with
counsel, who promised to remedy the BIA’s mistake);
Rodriguez-Lariz, 282 F.3d at 1225 (holding that petitioners
did not lack diligence when, after receiving a denial of their
appeal to the BIA, they relied on counsel’s advice that filing
a motion to reopen would be in their best interests). There-
8
Contrary to the dissent’s suggestion, Dissent at 8951, the denial of an
appeal does not necessarily put an alien on notice of counsel’s every defi-
ciency. See, e.g. Sun v. Mukasey, 555 F.3d 802, 803, 805-06 (9th Cir.
2009) (recognizing that petitioner was not aware of prior counsels’ errors
until she received notice of an interview for adjustment of status based on
her VAWA petition and retained new counsel, notwithstanding the fact
that the BIA denied her asylum appeal two years prior); Singh, 491 F.3d
at 1096 (stating that petitioner became suspicious of counsel’s fraud a few
weeks after the BIA denied his appeal, when friends suggested that he
seek new counsel).
 AVAGYAN v. HOLDER 8947
fore, we hold that the BIA did not abuse its discretion when
it concluded that Avagyan did not act with due diligence with
respect to her claim that Spence and Martinez provided inef-
fective assistance of counsel in preparing her asylum petition.
Avagyan’s motion to reopen was untimely with respect to that
claim.

2. Counsel’s Incompetent Advice on Adjustment of Status

It is unclear whether the BIA even considered whether
Avagyan exercised due diligence with respect to her adjust-
ment of status claim. Though the BIA recognized that
Avagyan claimed Spence, Martinez, and Gevorg gave her
incorrect advice on adjustment of status, its discussion of
Avagyan’s diligence focused almost exclusively on the lapse
of time between when Avagyan should have known about the
Spence’s deficiencies in preparing her asylum claim for hear-
ing and when she filed a motion to reopen.

[6] The BIA abuses its discretion when it denies petition-
er’s claim with no indication that it considered all of the evi-
dence and claims presented by the petition. See Mohammed,
400 F.3d at 792. Even if we assume that some of the BIA’s
more general statements about Avagyan’s diligence relate to
her adjustment of status claim, the BIA’s conclusions are
unsupported by the record and contrary to law. The BIA’s
conclusion that Avagyan “failed to explain the delay” in seek-
ing present counsel is wholly unsupported by the record. As
the BIA recognized, Avagyan declared that, after the removal
hearing, she retained Gevorg (whom she believed was an
attorney), asked him about whether she could become a
United States citizen as Vartanyan’s relative, and worked with
him to file a petition for an immediate relative visa. Gevorg
told her that she had to wait until the petition he filed was
approved before taking any further action.

[7] Avagyan had no reason to doubt Gevorg’s advice about
the proper procedure for seeking an immediate relative visa
8948 AVAGYAN v. HOLDER
and adjustment of status, and no reason to become suspicious
that he failed to render competent advice in this respect. See
Sun v. Mukasey, 555 F.3d 802, 805-06 (9th Cir. 2009) (hold-
ing that petitioner, who was told by counsel in 2003 that the
courts could afford no relief and she should wait for her
VAWA petition to be approved, was entitled to equitable toll-
ing until she retained new counsel in 2006). Specifically, the
BIA’s denial of her appeal in no way put Avagyan on notice
of the fact that she received bad advice about adjustment of
status, or that, if she failed to timely reopen her removal pro-
ceedings, she would be precluded from applying for adjust-
ment of status. See id. at 805. Indeed, a lay person reading the
BIA’s denial of Avagyan’s appeal would not know that a final
order of removal had issued, and would certainly not know
that such an order rendered all efforts to seek adjustment of
status ineffectual. Cf. Socop-Gonzales, 272 F.3d at 1182-83
(noting that a letter instructing petitioner to report for deporta-
tion on a specific date put him on notice that his attempts to
adjust his status after being ordered removed had been unsuc-
cessful).

[8] Avagyan asserts that, until she met with current coun-
sel, she was unaware that prior counsel gave her bad advice
on adjustment of status. The question is, therefore, whether
Avagyan made reasonable efforts to pursue relief until she
learned of counsel’s ineffectiveness. Ghahremani, 498 F.3d at
996-97. We conclude that she did. Avagyan diligently filed a
visa petition, and, on counsel’s advice, waited approximately
a year for it to be approved. Waiting was reasonable under the
circumstances.9 Given the long delays in our immigration sys-
9
As other circuits have recognized, “there is no magic period of time—
no per se rule—for equitable tolling premised on ineffective assistance of
counsel.” Wang v. BIA, 508 F.3d 710, 715 (2d. Cir. 2007). The dissent
argues that there must be “some outer limit on equitable tolling.” Dissent
at 8952. Our precedent establishes the contrary— the length of time does
not control our equitable tolling jurisprudence. In Mejia-Hernandez, we
held that a petitioner who waited for nearly seven years was entitled to
 AVAGYAN v. HOLDER 8949
tem, a year-long wait for adjudication of a visa application
does not evidence a lack of diligence. See Mejia-Hernandez,
633 F.3d at 824-25 (holding that petitioner’s seven-year long
wait for his wife’s NACARA claim to be adjudicated was rea-
sonable under the circumstances and did not show lack of due
diligence).

[9] Once Avagyan learned from her current counsel that
Spence, Martinez, and Gevorg were ineffective with respect
to her adjustment of status, she acted diligently to obtain and
review her file, and comply with the requirements of Lozada,
19 I. & N. Dec 637. She did not obtain the “vital information”
bearing on the existence of her claim until she reviewed her
file with competent counsel, so the limitations period should
be tolled until January 17, 2006. Because Avagyan filed her
motion to reopen within ninety days of that date, her motion
to reopen to apply for adjustment of status was timely. To the
extent that the BIA concluded to the contrary, its decision was
unsupported by the record, contrary to the law, and an abuse
of discretion.

IV.

Avagyan’s story is all too common. Many, many immi-
grants fall victim to incompetent or fraudulent counsel who
extract large sums of money but perform inadequately, or not
at all. In recognition, we have long afforded equitable tolling
of deadlines and numerical limitations to aliens who are pre-

equitable tolling of the entire period, because waiting was reasonable
under the circumstances. See Mejia-Hernandez, 633 F.3d at 825 (recogniz-
ing that petitioner’s wait was “long, but ultimately reasonable”); see also
Sun, 555 F.3d at 805-06 (equitably tolling the period of more than two
years between the BIA’s denial of petitioner’s appeal and her motion to
reopen, when petitioner was waiting, on the advice of counsel, for adjudi-
cation of her VAWA petition); Albillo De-Leon, 410 F.3d at 1100 (equita-
bly tolling the six months during which petitioner was waiting for a
response to his FOIA request).
8950 AVAGYAN v. HOLDER
vented from timely or adequately filing due to ineffective
assistance of counsel. The Supreme Court’s decisions in Wal-
lace and Lawrence do not undermine our equitable tolling
jurisprudence, particularly in light of the Court’s decision in
Holland.

We conclude that Avagyan first had reason to became
suspicious of counsels’ ineffectiveness in preparing her asy-
lum claim after the BIA denied her appeal on February 25,
2005, and did not establish her diligence in discovering coun-
sel’s deficiency or continuing to pursue asylum after that date.
Thus, we hold that the BIA did not abuse its discretion when
it concluded that Avagyan’s motion to reopen on this ground
was untimely.

Nevertheless, we hold that Avagyan did not have reason to
become suspicious of her prior counsels’ ineffectiveness in
pursuing adjustment of status until she met with her current
counsel. Avagyan then, with due diligence, obtained and
reviewed her file, and filed a motion to reopen within ninety
days of reviewing the file with competent counsel. The BIA
abused its discretion in denying as untimely Avagyan’s
motion to reopen on the grounds of ineffective assistance in
applying for adjustment of status.

We grant the petition in part and remand to the BIA with
instructions to adjudicate the merits of Avagyan’s motion to
reopen to apply for adjustment of status. Fajardo, 300 F.3d at
1022, n.7. We retain jurisdiction over future appeals in this
matter.

PETITION GRANTED IN PART and DENIED IN
PART. REMANDED. COSTS ARE AWARDED TO THE
PETITIONER.
 AVAGYAN v. HOLDER 8951
CALLAHAN, Circuit Judge, dissenting:

As the majority recognizes, our review of the BIA’s deci-
sion is for abuse of discretion. Here, the BIA’s determination
that Avagyan failed to exercise due diligence was not an
abuse of discretion. Accordingly, I respectfully dissent.

Equitable tolling is a rare remedy to be applied only in “ex-
traordinary circumstances,” and not to “a garden variety claim
of excusable neglect.” See Holland v. Florida, 130 S.Ct.
2549, 2564 (2010). Even assuming that Avagyan reasonably
relied on the alleged ineffective assistance, this does not
excuse her failure, under the circumstances presented, to take
any action for ten months after the BIA denied her appeal
before consulting with current counsel.

The majority notes, and I agree, that by the time the BIA
denied Avagyan’s appeal, Avagyan was on notice that she had
received ineffective “representation” from Spence, Martinez
and Gevorg about her asylum claim. The BIA could reason-
ably draw the same conclusion concerning her immediate rel-
ative visa petition. Even accepting that Avagyan initially
could rely on Gevorg’s advice that she needed to wait until
her visa petition was approved before applying for adjustment
of status, the BIA’s order finalizing her removal reasonably
put her on notice to question that advice — particularly
because the same “lawyer,” Gevorge, was helping Avagyan
with both her asylum claim and her immediate relative visa
petition. Cf. Sun v. Mukasey, 555 F.3d 802 (9th Cir. 2009)
(petitioner retained two different lawyers, “one to handle her
successful [petition under the Violence Against Women Act]
and one to handle her unsuccessful efforts to seek relief from
removal through asylum”). However, Avagyan did nothing
for ten months. Although the BIA may not have been com-
pelled to conclude that Avagyan’s failure to act reflected a
lack of due diligence, the BIA could reasonably so conclude.1
1
Contrary to the majority’s suggestion, there is no evidence that the BIA
failed to consider Avagyan’s arguments with respect to her adjustment of
8952 AVAGYAN v. HOLDER
Avagyan’s case is sympathetic, given her advanced age and
her United States citizen daughter. This, however, does not
entitle her to relief under the law. Although she was the vic-
tim of ineffective assistance from attorneys and others regard-
ing her removal proceedings, there came a time when she had
notice of the fraud against her, and was required to act with
due diligence. Avagyan did not act promptly; in fact, she
failed to act for ten months. The majority’s insistence that the
BIA was compelled to grant Avagyan relief, does a disservice
by suggesting that an immigrant who has received a final
order of removal may simply wait for ten months, without
doing anything at all and still obtain relief.

There must be some outer limit on equitable tolling for fil-
ing motions to reopen; otherwise, such motions could be filed
indefinitely. Under the circumstances presented here, in light
of Avagyan’s unexplained inaction for ten months, the BIA’s
conclusion that Avagyan failed to exercise due diligence is
not an abuse of discretion.2 Accordingly, I respectfully dis-
sent.

status claim. The BIA considered Avagyan’s arguments about asylum and
adjustment of status — which were presented together, rather than sepa-
rately, in her motion to reopen — and then determined that Avagyan had
failed to explain her delay in seeking new counsel. There is no indication
that the BIA’s determination was limited to Avagyan’s arguments about
her asylum petition, and failed to cover her arguments about adjustment
of status. The BIA did not abuse its discretion in not providing further
explanation for its decision.
2
Notwithstanding the majority’s comments to the contrary, I do not sug-
gest that there is a per se rule for the amount of time allowed on equitable
tolling. Each case is evaluated in context and in light of the particular cir-
cumstances presented. It may well be that in some rare instances, a peti-
tioner who waits for over six years — while continuously following up
with his “attorney” during that time — is entitled to equitable tolling
because he acted with due diligence and waiting was reasonable under the
particular circumstances presented. See Mejia-Hernandez v. Holder, 633
F.3d 818, 825 (9th Cir. 2011). However, on the facts presented here, the
BIA could conclude (although it did not have to) that waiting for ten
months after the final denial of relief was not reasonable.
 AVAGYAN v. HOLDER 8953
Furthermore, because I believe that Avagyan is not entitled
to relief, and that the government’s position is substantially
justified, I would not award attorneys’ fees to Avagyan but
would have each side bear its own costs. See Equal Access to
Justice Act ("EAJA"), 28 U.S.C. § 2412.