Gonzalez v. Immigration & Naturalization Serv.

• Decision Date: 05 December 2001
• Docket Number: PETITIONER,SOCOP-GONZALE,No. 98-70782,98-70782
• Citation: 272 F.3d 1176
• Parties: (9th Cir. 2001) OSCAR, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1176

272 F.3d 1176 (9th Cir. 2001)

OSCAR SOCOP-GONZALEZ, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT

No. 98-70782

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 7, 2000

Opinion Filed March 27, 2000

Rehearing En Banc Granted September 29, 2000

Argued and Submitted December 20, 2000

Filed December 5, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Robert B. Jobe, San Francisco, California, for the petitioner.

David W. Odgen, Assistant Attorney General, Civil Division, Washington, D.C. (argued), and Hugh G. Mullane, Senior Litigation Counsel, Civil Division, Washington, D.C. (brief), for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A73-948-663

Before: Schroeder, Chief Judge, and Pregerson, Reinhardt, O'Scannlain, Hawkins, Tashima, Silverman, McKeown, Wardlaw, Paez, and Berzon, Circuit Judges.

Opinion by Judge Pregerson; Dissent by Judge O'Scannlain

PREGERSON, Circuit Judge:

Before appealing to a circuit court, an alien may seek relief from a decision of the Board of Immigration Appeals ("BIA") by filing a motion to reopen his or her deportation proceedings.¹ 8 C.F.R. § 3.2(a). The purpose of a motion to reopen is to present new facts or evidence that may entitle the alien to relief from deportation. INA § 240(c)(6)(B), 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 3.2(c)(1). An alien may use a motion to reopen to challenge the finding of deportability itself, or to show that the alien is newly eligible for relief from deportation. Iris Gomez, The Consequences of Nonappearance: Interpreting New Section 242B of the Immigration and Nationality Act, 30 San Diego L. Rev. 75, 117-18 (1993).²

In 1996, the Department of Justice promulgated regulations restricting an alien to one motion to reopen, and requiring the motion to be filed within ninety days of the BIA's decision. 8 C.F.R. § 3.2(c)(2). In this appeal, we reaffirm our prior holding that this ninety-day filing period is subject to equitable tolling. See Varela v. INS, 204 F.3d 1237, 1240 (9th Cir. 2000). We also conclude that the circumstances presented by the petitioner's case warrant equitable tolling. Accordingly, we grant the petition for review, reverse the denial of the motion to reopen, and remand to the BIA.

I. FACTS AND PROCEDURAL HISTORY

In November 1991, Oscar A. Socop-Gonzalez ("Socop"), a native and citizen of Guatemala, entered the United States as a nonimmigrant visitor. He was authorized to remain until May 26, 1992, but remained beyond that date without authorization from the INS. On September 5, 1995, Socop filed an application for asylum and withholding of deportation. On October 19, 1995, the INS initiated deportation proceedings against Socop by issuing an Order to Show Cause that charged him with overstaying his visa in violation of § 241(a)(2) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(2).³ At a hearing held before an Immigration Judge ("IJ"), Socop conceded that he was deportable as charged, but requested asylum, withholding of deportation, and alternatively, voluntary departure. On April 4, 1996, the IJ denied all requested relief and ordered Socop deported. Six days later, Socop filed a timely appeal with the BIA. Socop was represented by an attorney at the deportation hearing, but filed the appeal pro se.

On March 30, 1997, while his asylum appeal to the BIA was pending, Socop married Sandra Haydee Burbano, a United States citizen. On April 7, 1997, Socop went to the INS office in Westminster, California to inquire about how to submit a petition to immigrate based on his marriage. The INS officer staffing the information booth instructed Socop to withdraw his asylum appeal and to file an application for adjustment of status with the INS. Socop followed these instructions: that very day, he sent a letter to the BIA withdrawing his appeal. In his letter, he explained that he was withdrawing his appeal because he "got married to an American citizen and [was] going to file for my adjustment of status [through] marriage." On April 23, 1997, Socop filed an immediate relative petition, an application for adjustment of status, and an application for employment authorization with the INS.

Unfortunately, the INS officer provided incorrect advice to Socop. When the BIA received Socop's letter withdrawing his appeal, it issued an order dated May 5, 1997 returning the case to the Immigration Court without further action. This order constituted a final administrative decision in Socop's asylum case, which made Socop's April 4, 1996 deportation order immediately effective. Instead of instructing Socop to withdraw his asylum petition, the INS officer should have told Socop to file an immediate relative visa petition with the INS and wait until it was approved. Assuming the INS approved his visa petition (it in fact did so on April 7, 1998), Socop then should have filed a motion to reopen (styled as a motion to remand) with the BIA, accompanied by a completed application for adjustment of status and his approved visa petition. See 8 C.F.R. § 3.2(c)(4) (providing that motion to reopen while appeal is pending before the BIA "may be deemed a motion to remand for further proceedings before the Immigration Judge"); 8 C.F.R. § 3.2(c)(1) (providing that motion to reopen on basis of new eligibility for relief from deportation "must be accompanied by the appropriate application for relief and all supporting documentation").

The BIA may grant a motion to remand before it has rendered a final decision in a given case. In re Yewondwosen, 21 I. & N. Dec. 1025 (1997). Therefore, had Socop's visa petition been approved before the BIA rendered its decision in his asylum appeal, the BIA could have granted his motion to remand. Even if the BIA had rendered a final decision in Socop's case before his visa petition had been approved, Socop still would still have had ninety days in which to file a supported motion to reopen. See 8 C.F.R. § 3.2(c)(2); In re H-A-, Interim Dec. 3394 (BIA 1999) (holding that alien whose deportation proceedings have closed may still move to reopen to adjust status so long as visa petition is approved within ninety days of final deportation order). By following the INS officer's advice to withdraw his appeal, however, Socop unwittingly triggered his own immediate deportation and, absent a successful motion to reopen, lost any chance he might have had to adjust his status on the basis of his marriage.

On July 2, 1997, the INS sent Socop a "Bag and Baggage" letter instructing him to report for deportation on August 11, 1997. This letter, which Socop received on July 7, 1997, alerted him for the first time that there was a problem with his attempt to adjust his status.

At the same time that the INS was attempting to deport Socop, it also started to process his application for adjustment of status. On July 12, 1997, ten days after the INS sent Socop the "Bag and Baggage" letter, it sent him a letter instructing him to report to the INS to receive his employment authorization card. On July 14, 1997, Socop consulted with a lawyer who prepared and filed a waiver of excludability, presumably to supplement his adjustment of status petition. Two days later, Socop went to the INS and picked up his employment authorization card, which had an expiration date of July 15, 1998.

Concerned that he had not followed the proper procedure to adjust his status, and confused by the conflicting signals he was receiving from the INS, Socop returned to the INS office in Westminster on August 6, 1997. He spoke with the same INS officer with whom he had spoken on his previous visit, and she again told him that in order to adjust his status, he needed to withdraw his asylum appeal with the BIA.

By now Socop was wary of the INS officer's advice. With a lawyer's assistance, on August 11, 1997, Socop moved the BIA to reopen his case and to reinstate his asylum appeal. Socop based his motion to reopen on the ground that he relied to his detriment on the incorrect advice of the INS officer. Socop also urged the BIA to exercise its sua sponte power to reopen his case. See 8 C.F.R. § 3.2(a) (authorizing BIA to reopen cases on its own motion).

The BIA denied Socop's motion to reopen on two grounds. First, it held that the motion to reopen was untimely because it was not filed within ninety days of the BIA's decision.⁴ Second, the BIA held that even if Socop's motion to reopen were timely, the motion should be denied because Socop did not submit an approved visa petition and an application for adjustment of status at the time he filed his motion to reopen. After denying Socop's motion to reopen, the BIA also declined to exercise its sua sponte power to reopen, finding that Socop's case did not present "exceptional circumstances." See In re J-J-, 21 I. & N. Dec. 976 (1997) (establishing "exceptional circumstances" standard for sua sponte reopening).

Socop timely appealed the BIA's decision to this court. On appeal, Socop argues that the BIA should have equitably tolled the ninety-day filing period for motions to reopen. Specifically, Socop argues that the period from May 5 (when the BIA returned Socop's case to the Immigration Court) until July 7 (when Socop received the "Bag and Baggage" letter) should be tolled because during this time, despite due diligence, he did not know that the erroneous advice of the INS officer had caused him to follow the wrong procedure and that, as a result, his April 4, 1996 deportation order had become effective. In the alternative, Socop argues that the BIA erred in refusing to exercise its sua sponte power to reopen cases that present "exceptional circumstances." Because we hold that the BIA should have equitably tolled the ninety-day filing period, we do not reach the question whether the BIA should have exercised its sua sponte power to reopen.

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