Iavorski v. U.S. Immigration & Naturalization
| Decision Date | 01 August 2000 |
| Docket Number | Docket No. 00-4086 |
| Parties | (2nd Cir. 2000) STANISLAV IAVORSKI, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent |
| Court | U.S. Court of Appeals — Second Circuit |
MATTHEW L. GUADAGNO, Kerry William Bretz and Jules Coven, Bretz & Coven, LLP, New York, NY, for Petitioner.
HEIDI A. WENDEL, Diogenes P. Kekatos, and Gideon Schor, Assistant United States Attorneys, New York, NY, of counsel, for Respondent.
Before: McLAUGHLIN, CALABRESI, and SOTOMAYOR, Circuit Judges.
Some two years after his deportation hearing, petitioner Stanislav Iavorski discovered that his attorney had not appealed the Immigration Judge's ("IJ") denial of his applications for political asylum and withholding of deportation as that attorney allegedly had promised to do. Iavorski now attempts to reopen his deportation proceedings after missing the deadlines both to file his appeal and, later, to reopen his proceedings. This case presents the issue of whether the filing deadline for motions to reopen deportation proceedings may be equitably tolled when ineffective assistance of counsel has both violated an alien's constitutional right to due process of law by eliminating the right to appeal, and has caused the alien to miss the filing deadline for a motion to reopen that normally could serve as the vehicle to cure that due process violation.1
Because there is no evidence that Congress intended to enact a jurisdictional bar to untimely motions to reopen, we hold that the filing deadline for motions to reopen may be equitably tolled. Although equitable tolling is available, Iavorski's failure to exhibit due diligence in pursuing his claim precludes the equitable tolling of the filing deadline in this case as a matter of law. We, therefore, affirm the BIA's denial of Iavorski's motions to reopen.
Iavorski is a Russian citizen who entered the United States on March 20, 1995 on a tourist visa. He failed to leave when his visa expired six months later and instead applied to the Immigration and Naturalization Service ("INS") for political asylum and withholding of deportation. The INS placed him in deportation proceedings for having overstayed his tourist visa. At his deportation hearing on March 7, 1996, the IJ denied his applications for political asylum and withholding of deportation, but granted him the privilege of "voluntary departure," allowing him one year to leave the United States voluntarily in lieu of actual deportation. Iavorski was given notice that if he remained in the United States beyond one year for reasons "other than because of exceptional circumstances beyond [his] control," he would become "ineligible for certain forms of relief" including his "adjustment of status" to that of a permanent resident.
At the conclusion of his deportation hearing, Iavorski's attorney reserved the right to appeal, and the IJ ordered that a written notice of appeal be filed by March 18, 1996. Although Iavorski claims that his attorney promised to file his appeal, the attorney failed to do so. Iavorski did not leave the United States within a year, rendering him deportable, even though the INS apparently never actually attempted to deport him.
Iavorski later applied for the annual Diversity Visa Program and, on April 6, 1998, the Department of State notified him that he had been selected at random to begin the process of becoming a permanent resident. Soon thereafter, on June 16, 1998, the INS received a Freedom of Information Act request from Iavorski seeking information on the status of his deportation case. The INS informed him that no appeal had ever been filed. On July 28, 1998, Iavorski, having retained a new attorney, moved the IJ to reopen his case, stating that his prior counsel had "[i]nform[ed him] that the Notice of Appeal has been filed," and that "his case [was] proceeding properly."
On September 15, 1998, the IJ denied Iavorski's motion to reopen, finding, inter alia, that the motion was filed well beyond the 90 day deadline established under 8 C.F.R. § 3.23(b)(1), and that any reopening would be fruitless since Iavorski was barred from adjustment to permanent resident status because he had not voluntarily left the United States as he had promised.
Iavorski appealed to the Board of Immigration Appeals ("BIA") from the IJ's denial of his motion to reopen. With his appeal, he submitted an affidavit recounting that, after his deportation hearing, his former attorney had
informed me that he will appeal the decision and it will cost me $1,000. I agreed and had called him on 3/10/96 and left a massage [sic], asking him to call me back and arrange a meeting. After 3/15/96, I had tried to call him again but his office had moved. I tried to get in contact with him but was not successful. Throughout this time, I was sure that he had filed an appeal in my case.
While the BIA was still considering Iavorski's appeal from the denial of his motion to reopen, Iavorski married a United States citizen. His wife petitioned the INS to grant Iavorski permanent resident status and the INS approved the first stage of the petition. Iavorski now faced the same problem with his wife's petition for his residency as he did with his "visa lottery" approval: he was barred from adjusting his status to that of a permanent resident because the IJ still had jurisdiction over his case, had found him deportable, and would not reopen his deportation proceedings. At this point, Iavorski's new attorney sent a second motion directly to the BIA asking that it "reconsider" Iavorski's case. The BIA took this motion to be a request to reopen and remand the case to the IJ.
In dismissing Iavorski's appeal and denying his motions as untimely, the BIA rejected his contention that his "proceedings should be reopened based upon his assertion that he was the victim of ineffective assistance of counsel." The BIA explained that the only exception to the filing deadline for motions to reopen "exists for motions to apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality or to which deportation has been ordered." See 8 C.F.R. § 3.23(b) (4)(i). Because this exception was inapplicable in Iavorski's case, the BIA dismissed the appeal. The BIA likewise found Iavorski's second motion to be time-barred. See 8 C.F.R. § 3.23(b)(4)(i). Iavorski now petitions this Court to review the BIA's decision.2
We review the BIA's conclusions of law de novo. See Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir. 1999). When the BIA has applied the correct law, its decision to deny a motion to reopen deportation proceedings is reviewed to determine "whether the decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." Fuentes Argueta v. INS, 101 F.3d 867, 870 (2d Cir. 1996) (internal quotation marks omitted).
In a deportation hearing, "the liberty of an individual is at stake" even though it "is not technically a criminal proceeding." See Bridges v. Wixon, 326 U.S. 135, 154 (1945). For this reason, "[i]t is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flores, 507 U.S. 292, 307 (1993) (citing The Japanese Immigrant Case, 189 U.S. 86, 100 101 (1903)).
During deportation proceedings, aliens have a statutory right to be represented by counsel at their own expense. 8 U.S.C. § 1362 (1994). This right is "an integral part of the procedural due process to which the alien is entitled." Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993) (internal quotation marks omitted). Ineffective assistance of counsel in moving to reopen or reconsider a deportation case occurs when "counsel's performance impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause." Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (internal quotation marks omitted). Such a deprivation of fundamental fairness is established when "(1) '. . . competent counsel would have acted otherwise,' and (2) '[the alien] was prejudiced by [] counsel's performance.'" Rabiu, 41 F.3d at 882 (quoting Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993) (per curiam)).3
If these conditions are met, the vehicle commonly used to redress claims of ineffective assistance of counsel in deportation proceedings has been an administrative motion to reopen proceedings. See, e.g. Rabiu, 41 F.3d 879 (); Esposito, 987 F.2d 108 (); Castillo Perez v. INS, 212 F.3d 518 (9th Cir. 2000) (). Claims of ineffective assistance of counsel satisfy the general requirement that motions to reopen present "new facts" that are "material and [were] not available and could not have been discovered or presented at the former hearing." 8 C.F.R. § 3.23(b)(3) (2000).
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