Jobe v. Immigration & Naturalization Serv., 99-1064

• Decision Date: 05 November 1999
• Docket Number: No. 99-1064,99-1064
• Citation: 238 F.3d 96
• Parties: (1st Cir. 2001) SULAY JOBE, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. Heard
• Court: U.S. Court of Appeals — First Circuit

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238 F.3d 96 (1st Cir. 2001) SULAY JOBE, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. No. 99-1064 United States Court of Appeals For the First Circuit Heard November 5, 1999
Decided January 30, 2001

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

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Linda M. Sanchez, with whom Cooper & Sanchez were on brief for petitioner.

Iris Gomez and Harvey Kaplan, with whom Kaplan, O'Sullivan and Friedman, was on brief for Massachusetts Law Reform Institute, Political Asylum Immigration Representation Project, Greater Boston Legal Services, International Institute of Boston, Community Legal Services and Counseling Center, Harvard Immigration and Refugee Clinic, Boston College Immigration and Asylum Project, National Immigration Project of the National Lawyers Guild, and American Immigration Lawyers Association, amici curiae.

Brenda E. Ellison, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, and David V. Bernal, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Before Torruella, Chief Judge, Bownes, Senior Circuit Judge, Selya, Boudin, Stahl, Lynch, and Lipez, Circuit Judges.

OPINION EN BANC

Stahl, Circuit Judge.

Petitioner Sulay Jobe failed to appear at his deportation hearing and was ordered deported in absentia. More than eight months later, Jobe filed a motion to reopen asking that his deportation order be rescinded. In support of the motion, Jobe alleged that ineffective assistance of counsel had caused him to miss the deportation hearing. An immigration judge ("IJ") denied the motion as untimely because, by statute, such motions must be filed within 180 days of the deportation order. Jobe appealed, contending that the same attorney incompetence that caused him to miss his hearing also caused him to miss the deadline for filing his motion to reopen. The Board of Immigration Appeals ("BIA") dismissed the appeal. Jobe then sought review of the BIA's decision in this court. On May 24, 2000, a divided panel vacated the BIA's order and remanded for a hearing to determine whether the running of the 180-day period for filing a motion to reopen should be equitably tolled on the facts of this case. Thereafter, respondent Immigration and Naturalization Service ("INS") petitioned for and was granted en banc review of the panel's holding. We simultaneously withdrew the panel opinion. We now dismiss Jobe's petition for review.

I.

In June 1994, Jobe, a native and citizen of Gambia, entered the United States as a nonimmigrant visitor for business. He was authorized to remain in the United States until July 18, 1994, but remained beyond that date without authorization from the INS. On September 9, 1994, Jobe contacted the INS and filed an application for political asylum. On February 6, 1996, the INS informed Jobe that his application had been denied and his case referred to an IJ for a hearing.

On February 14, 1996, the INS served Jobe with an order to show cause ("OSC"),

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which charged him with remaining in the United States longer than permitted, in violation of § 241(a)(1)(B) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1251(a)(1)(B) (1994).¹ A hearing on the OSC was scheduled in Boston on May 22, 1996. The OSC specifically advised Jobe that, if he failed to appear for his hearing and his deportability were established, he would be deported in absentia. The OSC also advised Jobe that, if were deported in absentia, he could not have the order rescinded except that he "may file a motion to reopen the hearing within 180 days after the date of the [deportation] order if [the alien is] able to show that [his] failure to appear was because of exceptional circumstances . . . ." ² In March or early April of 1996, Jobe moved to New York City to live with his friend, Sulayman Bah. Jobe does not write or speak English, and thus used Bah as an intermediary to retain attorney Earl S. David to represent him.

The crucial facts of this case, which we derive from Jobe's own submissions during the administrative proceedings, are as follows. On April 12, 1996, Attorney David wrote to the Immigration Court in Boston, requesting a change in venue to New York because Jobe now lived there. Subsequently, Jobe, again using Bah as an intermediary, contacted Attorney David to inform him that he would be unable to attend the May 22 hearing because of a back injury. According to affidavits submitted by Bah and Jobe (and disputed by Attorney David), David informed Bah that the case already had been transferred to New York and that Jobe would be contacted when the court set a new hearing date. The case never was transferred. Neither Jobe nor David attended the May 22 hearing, and Jobe was ordered deported in absentia. In his brief, Jobe suggests that he only learned that he had been ordered deported in absentia when he received a December 4, 1996 notice from the INS denying his application to renew his employment authorization. At that time, the 180-day statutory window for seeking rescission on the basis of exceptional circumstances - a statutory window of which Jobe had been advised in the OSC - had closed, but only by a couple of weeks.

Nonetheless, Jobe failed to take any action until February 11, 1997, when, acting through new counsel, he moved to reopen and stay the deportation proceedings. Insofar as is here relevant, he argued that his failure to appear was the result of "exceptional circumstances" -i.e., ineffective assistance of counsel³ -- and that

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his deportation order thus should be rescinded. See INA § 242B(c)(3)(A), codified at 8 U.S.C. § 1252b(c)(3)(A) (1994) ⁴ (permitting the rescission of an in absentia deportation order "only . . . upon a motion to reopen filed within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (f)(2) of this section)").⁵ On February 12, 1997, an IJ denied the motion as untimely, noting that it was brought well outside the 180-day window provided in the statute. On March 10, 1997, Jobe appealed the IJ's decision to the BIA. He argued that the IJ erred in denying his motion to reopen because his failure to file the motion within the 180-day statutory period was caused by the same ineffective assistance of counsel that caused him to miss his deportation hearing in the first instance. On December 15, 1998, the BIA dismissed Jobe's appeal because Jobe was "statutorily barred [by the 180-day statutory window] from rescinding the deportation order on the basis of exceptional circumstances."

Jobe then petitioned us to review the BIA's order. In his brief, Jobe argued that the BIA violated his due process rights by applying the 180-day statutory period in circumstances where the same ineffective assistance of counsel that caused him to miss his hearing also caused him to miss the deadline for filing his motion to reopen. A divided panel of this court granted the petition. The majority construed Jobe's brief as setting forth an argument that the 180-day time period prescribed in INA § 242B(c)(3)(A) is subject to equitable tolling, and, after noting that the issue has split the circuits,⁶ agreed with Jobe's argument on the merits. The majority also determined that Jobe's submissions were sufficient to warrant further inquiry, at the agency level, into whether the statute should be equitably tolled in the circumstances of this case. The dissent argued, inter alia, that the majority should not have decided whether the statute is subject to equitable tolling because, even if it were, Jobe had failed to establish possible entitlement to equitable relief. Thereafter, the INS sought and was granted rehearing en banc, and the panel opinion was withdrawn.

II.

In its petition for rehearing en banc, the INS makes a powerful argument that INA § 242B(c)(3)(A) should be regarded as mandatory and jurisdictional and thus not subject to equitable tolling -an argument that is skillfully countered not only by our dissenting brothers, but...