Petition for review of BIA decision denying petitioners' untimely request for reopening based on an allegation of
ineffective assistance of former counsel. Petitioners claimed their former attorneys were ineffective because those attorneys told them not to file for asylum. The former attorneys filed an application for cancellation of removal that was denied.
The Court determined that the Board abused its discretion in denying Petitioners' motion to reopen as untimely. The
Court explained that the Board failed to consider Petitioners' contentions that the notario and attorney who prepared
their 2003 asylum and cancellation of removal applications provided false information in the applications and failed to
solicit information concerning the asylum claim. 755 F. App'x at 668 (citing Sagaydak v. Gonzales, 405 F.3d 1035, 1040
(9th Cir. 2005)). The Board's failure to address those contentions, the Court stated, "undermines its grounds for
rejecting equitable tolling of the filing deadline because the BIA's analysis relies on dates and other information in those
applications that petitioners allege were falsely provided due to the ineffective assistance." Id. The Court further
determined that the Board failed to explain its conclusion that Petitioners, "having alleged that the female petitioner
was persecuted by a local political figure, and was rebuffed when she sought assistant from local authorities, did not
present a colorable asylum claim." Id. (citing Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004) (in assessing whether a
petitioner was prejudiced by incompetent counsel, this court "must consider the underlying merits of the case to come
to a tentative conclusion as to whether [the petitioner's] claim, if properly presented, would be viable")Remanded to BIA. EAJA claim was settled.