dissenting:
I respectfully dissent.
Under 8 C.F.R. § 1003.23(b)(4)(iii)(A)(l), a petitioner who demonstrates “exceptional circumstances” may file a motion to reopen up to 180 days after the entry of an order of removal. Rivera’s motion was filed 2015 days after entry of the order of removal, and 955 days after the denial of his prior motion to reopen.4
The IJ properly acknowledged that “the time limitations on motions to reopen may be equitably tolled in cases where ‘despite all due diligence, [the respondent] is unable to obtain vital information bearing on the existence of the claim.’ ” 5 And the IJ properly noted that “this includes situations where the alien’s lack of awareness results from fraud by a third party or the ineffective assistance of counsel.”6 However, the IJ also gave a suitable reason for denying equitable tolling in this case:
[Rivera] did not indicate that there was any delay in receiving notice of the Court’s [denial of his first motion to reopen], so the time is not equitably tolled.
This vitiated Rivera’s equitable tolling claim. Tolling applies “where ... despite all due diligence, [the party invoking equitable tolling] is unable to obtain vital information bearing on the existence of the claim[,]”7 including “aware[ness] of the harm resulting from [alleged] misconduct.” 8
Upon receipt of the order denying his first motion to reopen, on January 31, 2000, Rivera knew the following: (1) he had been ordered deported because he had failed to appear at his hearing, and had failed to appear at that hearing because his immigration expert had not met him at a predetermined location the morning of the hearing; (2) this expert’s subsequent advice — that there was no way to challenge the order — was incorrect; and (3) that his first motion to reopen was denied, in part, because the new immigration expert representing him filed the motion late.
At that point, Rivera had the “vital information” he needed to claim ineffective assistance. Yet he delayed filing a second motion to reopen for nearly 3 years (955 days). This lack of “due diligence” precludes equitable tolling after January 31, 2000.
. Rivera’s prior motion to reopen was filed 893 days after entry of the order of removal.
. Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir.2001).
. Id., citing Varela v. INS, 204 F.3d 1237, 1240 (9th Cir.2000) and Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir.1999).
. Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir.2001) (en banc) (emphasis added) (quotation omitted); see also Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003).
. Fajardo v. INS, 300 F.3d 1018, 1019 n. 2 (9th Cir.2002); see also Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003).