SOCOP-Gonzalez v. INS
| Decision Date | 27 March 2000 |
| Docket Number | P,No. 98-70782,SOCOP-GONZALE,98-70782 |
| Citation | 208 F.3d 838 |
| Parties | (9th Cir. 2000) OSCARetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, OPINION Respondent |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted] COUNSEL: Thomas R. Le Gro, Riverside, California, for the petitioner.
Hugh G. Mullane, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals INS No. A73-948-663
Before: Harry Pregerson and Kim McLane Wardlaw, Circuit Judges, and Milton I. Shadur, District Judge.1
Petitioner Oscar A. Socop-Gonzalez was given incorrect information by an INS officer regarding the appropriate procedures for legalizing his immigration status. Socop-Gonzalez relied on that information and, as a result, he did not file the necessary motion to reopen deportation proceedings against him until after the statute of limitations had expired. Two questions are presented for our review. First, we must decide whether the government is equitably estopped from enforcing the statute of limitations against Socop-Gonzalez. Second, we must decide whether these facts create an exceptional situation in which the Board of Immigration Appeals ("Board" or "BIA") should have reopened proceedings sua sponte. We hold that the doctrine of equitable estoppel does not apply in this case, but that the BIA abused its discretion in deciding whether to reopen proceedings. Thus, we grant the petition and reverse.
Socop-Gonzalez is a native and citizen of Guatemala. He entered the United States on November 26, 1991 as a nonimmigrant visitor with permission to remain until May 26, 1992. On September 6, 1995, Socop-Gonzalez filed an application for asylum and withholding of deportation. On October 19, 1995, the INS ordered Socop-Gonzalez to show cause why he should not be deported pursuant to the Immigration and Nationality Act ("INA") S 241(a). A hearing was held before an Immigration Judge ("IJ") at which Socop-Gonzalez requested asylum, withholding of deportation, and alternatively, voluntary departure. On April 4, 1996, the IJ denied Socop-Gonzalez's application for asylum and withholding of deportation, and declined to grant him voluntary departure. Two days later, Socop-Gonzalez filed an appeal to the BIA. Socop-Gonzalez was represented by an attorney at the deportation hearing, but he filed the appeal pro se.
On March 30, 1997, while his appeal to the BIA was pending, Socop-Gonzalez married Sandra Haydee Burbano, a United States citizen. On April 7, 1997, Socop-Gonzalez went to the INS officer in Westminster, California to inquire how to submit a petition to immigrate based on his marriage. The INS officer staffing the information booth instructed him to withdraw his asylum appeal, and to file an application for adjustment of status. Socop-Gonzalez followed these instructions: he first sent a letter to the BIA, withdrawing his appeal and then, on April 23, 1997, he mailed an application for adjustment of status to the INS.
The INS began processing Socop-Gonzalez's application for adjustment of status. On July 12, 1997, it sent him a letter instructing him to report to the INS to receive his employment authorization card. On April 7, 1998, the INS issued SocopGonzalez a "Notice of Approval of Relative Immigrant Visa Petition." Socop-Gonzalez then requested a "Bona Fide Marriage Exemption."
Meanwhile, the BIA received Socop-Gonzalez's letter withdrawing the appeal and on May 5, 1997 issued an order returning the case to the immigration court. Because this order constituted a final administrative decision in his case, on July 2, 1997, the INS ordered Socop-Gonzalez to report for deportation on August 11, 1997. This notice alerted SocopGonzalez to a problem in his effort to adjust his status. On August 6, 1997, Socop-Gonzalez returned to the INS office to ensure that he had taken the proper steps. He spoke with the same INS officer as before. She repeated the information she had told him previously.
On August 11, 1997, Socop-Gonzalez, through new counsel, filed a motion to reopen his case and to reconsider the withdrawal of his appeal from the BIA. The BIA denied the motion to reopen because it was not filed within 90 days of the BIA's May 5, 1997 decision. The BIA also denied the motion to reconsider because it was not filed with 30 days of the BIA's decision. Finally, the BIA declined to exercise its power to reopen or reconsider cases sua sponte, stating that the power was available only in exceptional circumstances and that Socop-Gonzalez failed to demonstrate that his case involved exceptional circumstances. The BIA did not respond to Socop-Gonzalez's argument that the government was estopped from enforcing the statute of limitations against him.
We have jurisdiction to review the BIA's decision under the INA S 106(a), 8 U.S.C. S 1105a(a), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 110 Stat. 3009-546, S 309.2 We review the BIA's ruling on a motion to reopen for an abuse of discretion, see Shaar v. INS, 141 F.3d 953, 955 (9th Cir. 1998); Arrozal v. INS, 159 F.3d 429, 432 (1998), but we review de novo questions of law, including dismissal on statute of limitations grounds, see Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir. 1999); Shaar, 141 F.3d at 955.
A motion to reopen deportation proceedings3 "must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceedings sought to be reopened, or on or before September 30, 1996, whichever is later." 8 C.F.R. S 3.2(c)(2). The parties to this appeal do not dispute that Socop-Gonzalez's motion to reopen was untimely. The final administrative decision in this case was entered on May 5, 1997, when the BIA accepted SocopGonzalez's withdrawal of his appeal of his asylum claim. Socop-Gonzalez did not file the motion to reopen until August 11, 1997, seven days after the 90-day window had closed. Instead, Socop-Gonzalez argues the doctrine of equitable estoppel prevents the government from enforcing the statute of limitations against him.
The doctrine of equitable estoppel applies against the government only if the government engages in " `affirmative misconduct going beyond mere negligence.' " Mukherjee v. INS, 793 F.2d 1006, 1008 (9th Cir. 1986) (quoting Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985)). 4 Socop-Gonzalez argues that the INS officer gave him incorrect information, and that providing incorrect advice constitutes affirmative misconduct. In order to present evidence of his eligibility for adjustment of status, Socop-Gonzalez needed to move to reopen proceedings with the BIA because he was already in deportation proceedings. More importantly, it was not necessary for Socop-Gonzalez to withdraw his appeal to the BIA. He could have filed his application for adjustment of status with the Executive Office of Immigration Review, an agency that includes the BIA, while his appeal to the BIA was pending. If he had not withdrawn his appeal, the statute of limitations would not have begun to run until after the BIA decided his asylum appeal. See 8 C.F.R. SS 3.2(c)(1), 3.2(g)(2)(i).
The INS officer's actions, without more, do not constitute affirmative misconduct. Failure to inform an individual of his or her legal rights is not affirmative misconduct. See Santiago v. INS, 526 F.2d 488, 493 (9th Cir. 1975) (en banc) (); see also Lavin v. Marsh, 644 F.2d 1378, 1383 (9th Cir. 1981) (). Similarly, the negligent provision of misinformation is not affirmative misconduct. See Mukherjee, 793 F.2d at 1009 (). Here, the INS officer was clearly mistaken when she told Socop-Gonzalez to withdraw his appeal to the BIA and file the application for adjustment of status with the INS. But there is no evidence of "a deliberate lie" or "a pattern of false promises" that would satisfy the requirement of affirmative misconduct. See id. Thus, the government is not estopped from applying the statute of limitations to Socop-Gonzalez's motion to reopen.
Even in cases where the statute of limitations has expired, the BIA may reopen deportation proceedings sua sponte:
The Board may at any time reopen or reconsider on its own motion in any case in which it has rendered a decision. . . . The decision to grant or deny a motion to reopen or reconsider is within the discre tion of the Board, subject to the restrictions of this section. The Board has the discretion to deny a motion to reopen even if the party has made out a prima facie case for relief.
8 C.F.R. S 3.2(a). This regulation does not specify when the BIA should exercise this power, but the BIA has ruled that it will reopen cases in "exceptional situations. " See In re J-J-, Interim Decision 3323 (BIA 1997). Socop-Gonzalez argues that the BIA abused its discretion by not reopening his case sua sponte. The INS responds that the BIA's decision is not subject to judicial review. We consider these arguments in reverse order.
There is a " `strong presumption that Congress intends judicial review of administrative action.' " Helgeson v. Bureau of...
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