Shegow v. Holder

MEMORANDUM **

Muna Mohamed Shegow, a native and citizen of Somalia, and Salma Abdulkadir Omar, a native of Kenya and citizen of Somalia, petition for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) order denying their motion to reopen deportation proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We grant the petition for review, and remand.

Although Petitioners’ motion to reopen was filed outside the 180-day period for motions to reopen due to “exceptional circumstances,” that period may be equitably tolled by a showing of ineffective or deceptive legal representation. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc). Here, the IJ rejected Petitioners’ ineffective assistance claim against attorney Leposki on the grounds that Leposki failed to file a notice of appearance with the immigration court. We remand for the IJ to consider Petitioners’ evidence that they had in fact hired Lepo-ski to represent them before the immigration court and that Leposki’s failure to enter an appearance was itself evidence of his ineffectiveness.

On remand, the IJ should also consider the conflicting evidence regarding attorney Paek’s purported ineffective assistance. See INS v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.