Is a failure to meet the filing deadline fatal?

Failure to meet the filing deadline is not fatal where equitable tolling is available.⁴ Ineffective assistance of counsel is one basis for equitable tolling. Singh v. Holder , 658 F.3d 879, 884 (9th Cir. 2011). Equitable tolling applies in ineffective assistance of counsel cases because, [a]lthough there is no Sixth Amendment right to counsel in a deportation proceeding, the due process guarantees of the Fifth Amendment still must be afforded to an alien petitioner. Avagyan , 646 F.3d at 67677 (citation omitted). Ineffective assistance of counsel in a deportation proceeding denies an alien petitioner his due process rights if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case. Id. at 677 (citation omitted). Erroneous legal advice that results in the petitioner failing to file a timely motion to reopen is such a denial of due process. Id. Consequently, we recognize[ ] equitable tolling of deadlines and numerical limits on motions to reopen ... during periods when a petitioner is prevented from filing because of [his attorney's] deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error. Id. (quoting Iturribarria , 321 F.3d at 897 ).