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.