Abdallah Fraihat v. Eric H. Holder Jr., 439 F. App'x 597

Petitioner challenged the BIA's April 29, 2008 affirmation of IJ Atenaide's February 24, 2006 removal decision.
His motion to reopen removal proceedings was deemed untimely by the IJ and BIA.
Petitioner contends equitable tolling due to allegedly incorrect legal advice during proceedings and due process deficiencies invalidating his appeal waiver.
The district court reviews BIA denials of motions to reopen for abuse of discretion, with de novo review for purely legal questions.
The court dismisses the equitable tolling claim but grants relief on the due process claim related to the appeal waiver and remands for merits consideration.
If the waiver was invalid, Petitioner’s BIA appeal must be heard on the merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether equitable tolling was properly exhausted	Petitioner argues entitlement to tolling due to misadvice.	BIA/petitioner failed to exhaust based on lack of explicit tolling claim in appeal.	No jurisdiction to hear equitable tolling claim; exhaustion not satisfied.
Whether the appeal waiver was considered intelligent given IJ advice	Waiver may be invalid due to misleading advice affecting intelligent consideration.	Waiver validity not adequately addressed on the record.	Waiver issue remanded; if invalid, merits review on BIA.

Singh v. Ashcroft, 367 F.3d 1182 (9th Cir. 2004) (BIA abuse standard; deference to agency findings on reopenings)
Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003) (de novo review for pure legal questions)
Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002) (scope of review when BIA adopts IJ opinion)
Vargas v. U.S. Dep’t of Immigration and Naturalization, 831 F.2d 906 (9th Cir. 1987) (exhaustion requirement for equitable tolling claim)
Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) (equitable tolling argument considerations)
Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005) (due process and validity of appeal waivers)