Socop-Gonzalez v. INS: 9th Circuit Issues En Banc Decision Finding the Deadline for Motions to Reopen Deportation Proceedings Is Subject to Equitable Tolling

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

SOCOP-GONZALEZ V. INS: 9TH CIRCUIT ISSUES EN BANC DECISION FINDING THE DEADLINE FOR MOTIONS TO REOPEN DEPORTATION PROCEEDINGS IS SUBJECT TO EQUITABLE TOLLING
Immigrants' Rights Update, Vol. 16, No. 1, February 28, 2002

The U.S. Court of Appeals for the Ninth Circuit has issued an en banc decision affirming prior rulings of the court that find that the 90-day deadline for filing a motion to reopen deportation proceedings is subject to equitable tolling. The court found that the Board of Immigration Appeals erred in not equitably tolling the 90-day deadline during the period of time that the respondent failed to move to reopen because of erroneous advice he received from an Immigration and Naturalization Service officer.

The respondent in this case, a Mr. Socop, is a Guatemalan national who entered the United States as a nonimmigrant visitor in 1992. He overstayed his visa, and in September 1995 he applied to the Immigration and Naturalization Service for asylum and withholding of deportation. In October 1995 the INS denied his application and initiated deportation proceedings against him. At his hearing before the immigration judge, Socop conceded deportability and applied for asylum, withholding, and voluntary departure. In April 1996, the IJ denied all relief and entered an order of deportation, which Socop appealed to the BIA.

In March 1997, while the BIA appeal was pending, Socop married a U.S. citizen. In April 1997 he went to an INS office to ask how to apply to immigrate based on his marriage. An INS officer told Socop to withdraw his BIA appeal and to file an application for adjustment of status with the INS. The INS officer's advice was incorrect; Socop should have first filed the visa petition, and once it was approved, filed a motion to the BIA to remand the case to allow him to apply for adjustment.

As he was instructed, Socop promptly wrote to the BIA, explaining that he was withdrawing his appeal because he was going to file for adjustment of status. He then filed with the INS an immediate relative visa petition, an application for adjustment of status, and an application for employment authorization. On May 5, 1997, the BIA, in response to Socop's letter, issued an order dismissing the appeal and returning the case to the immigration court without further action. This order constituted a final order of deportation, and in July 1997 the INS sent Socop a "bag and baggage" letter to report to the INS in August for deportation. At nearly the same time, Socop was notified by the INS that he could pick up his employment authorization document, which the INS issued based on the adjustment application.

Socop picked up his EAD but at this point had become worried about the status of his case and confused by the different notices he received. On August 6 he went again to the INS office and spoke with the same INS officer who had previously advised him. She again told him to withdraw his appeal in order to adjust his status. However, Socop was now wary of this advice, and consulted an attorney. With the attorney's assistance, on Aug. 11, 1997, Socop filed a motion to reopen with the BIA. He requested that the BIA reopen his case and reinstate his appeal because he had relied on the erroneous advice of the INS officer, and he also asked the BIA to use its authority to reopen the case sua sponte (on its own motion).

The BIA denied the motion as untimely because more than 90 days had passed from the entry of the May 5, 1997, order; Socop's motion was late by seven days. The BIA also refused to use its power to reopen the case sua sponte, finding that Socop did not establish "exceptional circumstances."

Socop filed a timely petition for review of the BIA's denial of the motion to reopen. Socop contended that the government should be equitably estopped from contending that his motion was late, and also that the BIA should have reopened proceedings on its own motion. In 2000, a three-judge panel of the Ninth Circuit ruled in his favor. Socop-Gonzalez v. INS, 208 F.3d 838 (9th Cir. 2000). The court ruled that the doctrine of equitable estoppel did not apply in this case because there was no affirmative misconduct on the part of the INS. However, the court found that the BIA abused its discretion in failing to state its reasons and show proper consideration of the equities that Socop presented when he sought sua sponte reopening. The INS then filed a petition for rehearing, and the court granted en banc review. An en banc panel of eleven judges issued the current decision.

The en banc panel found that, while the doctrine of equitable estoppel does not apply in this case, the separate doctrine of equitable tolling does apply. Unlike equitable estoppel, equitable tolling does not require a showing of intentional misconduct on the part of the government. Rather, equitable tolling applies where an individual is unaware of a cause of action or deadline, despite reasonable diligence.

The court rejected the government's argument that it has no jurisdiction to consider Socop's equitable tolling argument because he did not raise it to the BIA and thus failed to exhaust his administrative remedies. The court found that, although Socop's lawyer did not use the words "equitable tolling" in the briefs to the BIA, he "sufficiently raised the issue before the BIA" such that the court can review the issue on appeal. The briefs and supporting declaration submitted to the BIA set forth in detail the factual basis for the equitable tolling claim, including Socop's reasonable reliance on the advice of the INS officer and his lack of knowledge of the need to file a motion to reopen until he received the bag and baggage letter.

The court also rejected the INS's argument that the 90-day deadline for motions to reopen is a jurisdictional requirement and therefore not subject to equitable tolling. Whereas statutes of limitation generally are subject to equitable tolling, Congress may enact filing deadlines that are jurisdictional and may not be equitably tolled. Whether a filing deadline is mandatory and jurisdictional depends upon Congress's intent in establishing the deadline. Examining the statutes underlying the regulation governing reopening of deportation proceedings, 8 C.F.R. section 3.2(c)(2), and their legislative history, the court determined that Congress did not intend the filing deadline to be jurisdictional. As the court noted, the Second Circuit reached the same conclusion in Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000), and other panels of the Ninth Circuit have also found equitable tolling applicable to motion to reopen deadlines. Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999) (180-day deadline for motion to reopen in absentia order tolled due to ineffective assistance of counsel); Varela v. INS, 204 F.3d 1237 (9th Cir. 2000) (equitable tolling due to fraud of a notary).

The court further concluded that the circumstances of this case warrant equitable tolling. Socop established both that his ignorance of the filing deadline was caused by circumstances beyond his control and that those circumstances constitute more than "excusable neglect." In this case, Socop's deportation order was the result of his reasonable effort to diligently pursue his rights. Until he received the bag and baggage letter, he had no reason to believe that he was under a deportation order or that he needed to file a motion to reopen, and he reasonably believed that he had followed the correct procedure to adjust status. Accordingly, the court held that the 90-day deadline was tolled during the period from May 5 until July 7, 1997, when Socop received the bag and baggage letter.

Finally, the court rejected the approach to the application of tolling that was taken by a panel of the court in Santa Maria v. Pac. Bell, 202 F.3d 1170 (9th Cir. 2000). In Santa Maria, the court refused to toll the 300-day limitations period for filing a charge with the U.S. Equal Employment Opportunity Commission because although for much of that period the plaintiff did not know of vital information bearing on the existence of a claim, he nonetheless learned this information before the filing period expired. The Santa Maria approach would require the court in this case to determine whether Socop could reasonably have been expected to file the motion to reopen in the period between July 7 and early August, 1997.

The court found that the Santa Maria approach is "needlessly difficult to administer, runs counter to Supreme Court precedent, and undermines the policy objectives of the statute of limitations." The court instead adopted a simpler approach, that courts traditionally have employed, which is simply not to count the tolled period when computing the filing deadline. The court reasoned that this approach effectuates the policy objectives of a statute of limitations by allowing the individual the amount of time to file that Congress originally considered to be reasonable.

Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001).