Avagyan v. Holder, Jr., No. 06-73982 (9th Cir. 2011)
Annotate this CasePetitioner, a 71 year old native of Turkmenistan and a citizen of Armenia, petitioned for review of the 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. The court found that petitioner first had reason to become suspicious of counsels' ineffectiveness in preparing her asylum claim after the BIA denied her appeal on February 25, 2005, and did not establish her diligence in discovering counsel's deficiency or continuing to pursue asylum after that date. Thus, the court held that the BIA did not abuse its discretion when it concluded that petitioner's motion to reopen on this ground was untimely. The court held, however, that petitioner did not have reason to become suspicious of her prior counsels' ineffectiveness in pursuing adjustment of status until she met with her current counsel. Petitioner then, with due diligence obtained and reviewed her file, and filed a motion to reopen within 90 days of reviewing the file with competent counsel. Thus, the BIA abused its discretion in denying as untimely petitioner's motion to reopen on the grounds of ineffective assistance in applying for adjustment of status.
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