Juan Antonio RIVERA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 236 F. App'x 332

MEMORANDUM Juan Antonio Rivera petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming without opinion an immigration judge’s (“IJ”) denial of his motion to reopen in absentia deportation proceedings. We have jurisdiction under 8 U.S.C. § 1105a(a), as amended by § 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”). See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.1997). Because the BIA affirmed the IJ’s decision without opinion, we review the IJ’s decision as the final agency decision. See Fajardo v.

INS, 300 F.3d 1018, 1019 n. 1 (9th Cir.2002). We review for abuse of discretion the IJ’s denial of Rivera’s motion to reopen. See id. at 1019. We grant Rivera’s petition for review and remand for further proceedings. In Rivera’s September 12, 2002 motion to reopen, which was the second motion to reopen that he filed, Rivera alleged that he failed to attend his deportation hearing because of ineffective assistance of counsel (“IAC”) by a self-proclaimed immigration law expert.

Rivera also alleged that he failed to file a timely and adequately supported first motion to reopen because of IAC by another non-attorney posing as an immigration consultant. For these reasons, Rivera urged the BIA to equitably toll the deadline for filing his second motion to reopen, which he filed more than 180 days after he was ordered deported in absentia. See Fajardo, 300 F.3d at 1019-20; 8 C.F.R. § 1003.23(b)(4)(iii)(A)(l).

In denying Rivera’s motion to reopen, the IJ determined that: (1) the motion was number barred, because Rivera previously filed a motion to reopen; and (2) the motion was untimely and not equitably tolled, because Rivera “did not indicate that there was any delay in receiving notice of the [prior IJ] decision [denying his first motion to reopen].” The Government concedes that the IJ acted contrary to law by holding that Rivera’s motion was number barred, as the numerical limit that generally applies to motions to reopen does not apply to motions to reopen to rescind deportation orders entered in absentia.

See 8 C.F.R. § 1003.23(b)(1), (b)(4)(iii)(D). We conclude that the IJ also acted contrary to law and applied an erroneous legal standard by denying equitable tolling solely because Rivera did not allege a delay in receiving notice of the prior IJ decision denying his first motion to reopen. Under the federal regulations, a motion to reopen to rescind a deportation order entered in absentia can be filed more than 180 days after the order only if the petitioner “demonstrates that he or she did not receive notice” of the order. Id. § 1003.23(b)(4)(iii)(A)(2).

However, in Fajardo, we held that the 180-day limit can also be equitably tolled on the basis of IAC, regardless of whether the petitioner received timely notice of prior orders. See 300 F.3d at 1019 n. 2, 1022 (holding that, where petitioner “d[id] not challenge notice” of any prior order, her motion to reopen on the basis of IAC “must be tolled until [she] was aware of the harm resulting from [the] misconduct” of two non-attorney immigration consultants).

In particular, equitable tolling is available “during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003). Hence, the IJ acted contrary to law and applied an erroneous legal standard by failing to apply equitable tolling principles to Rivera’s motion to reopen solely because he did not allege a delay in receiving notice of the prior IJ decision denying his first motion to reopen.

In deciding whether equitable tolling is warranted, the IJ must determine whether Rivera exercised due diligence in discovering the alleged IAC, which does not turn on Rivera’s receipt of the prior IJ decision. Because the IJ applied an incorrect legal standard, we do not address the merits of Rivera’s equitable tolling claim. See Aza nor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir.2004) (“[W]e must decide whether to grant or deny the petition for review based on the Board’s reasoning----”). Instead, we remand for further proceedings consistent with this disposition. PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . The Government did not dispute that Rivera complied with the requirements of Matter of Lazada, 19 I. & N. Dec. 637, 639 (BIA 1988), for filing a motion to reopen on the basis of IAC. . The portions of 8 C.F.R. § 1003.23 relevant to our decision mirror former 8 U.S.C. § 1252b(c)(3), which was repealed in 1996, but applies in the instant case under IIRAIRA's transitional rules. .

The dissent attempts to fill in the gap between the sole reason the IJ gave for denying equitable estoppel — that Rivera did not indicate any delay in receiving notice of the prior IJ decision denying his first motion to reopen — and the legal standard that the IJ should have applied — whether Rivera exercised due diligence. When we review a BIA decision, however, we must consider only the reasoning in the agency’s final decision.

See Azanor, 364 F.3d at 1021 (holding that "we must decide whether to grant or deny the petition for review based on the Board’s reasoning rather than our own independent analysis" (emphasis added)). Thus, the dissent’s detailed analysis of due diligence cannot substitute for the lack of any such analysis in the IJ’s decision, and cannot be the basis for affirming the final agency decision.

Also, the dissent appears to argue that the IJ’s finding regarding notice necessarily answered the due diligence question because, when Rivera received notice of the prior IJ decision, he must have become aware of the harm resulting from the misconduct of the two immigration experts and obtained the vital information needed for his IAC claim. This argument, however, is not supported by our case law.

In several instances, we have found that the petitioner did not become sufficiently aware of the relevant misconduct until meeting with present counsel, even though the petitioner had received notice of the relevant prior agency decisions at an earlier date. See, e.g., Fajardo, 300 F.3d at 1019 n. 2, 1021-22 (“[Petitioner] subsequently hired her present counsel and only then became aware of the extent of [the alleged] misrepresentations.”); Iturribarria, 321 F.3d at 899; Lopez v. INS, 184 F.3d 1097, 1098-1100 (9th Cir. 1999).