Albillo-De Leon v. Gonzales

• Decision Date: 08 June 2005
• Docket Number: No. 02-70246.,02-70246.
• Citation: 410 F.3d 1090
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Edelfo ALBILLO-DE LEON, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.

410 F.3d 1090

Edelfo ALBILLO-DE LEON, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 02-70246.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2005.

Filed June 8, 2005.

COPYRIGHT MATERIAL OMITTED

Adrienne Ehrhardt, Snell & Wilmer, LLP, Tucson, AZ, for the petitioner.

Jason S. Patil (argued) and Shelley R. Goad (briefed), Office of Immigration Litigation, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A29-141-465.

Before MARY M. SCHROEDER, Chief Judge, HARRY PREGERSON, and STEPHEN S. TROTT, Circuit Judges.

PREGERSON, Circuit Judge.

An Immigration Judge ("IJ") dismissed Petitioner Edelfo Albillo-DeLeon's motion to reopen his deportation proceedings as untimely. The Board of Immigration Appeals ("BIA") affirmed without opinion. We have jurisdiction under 8 U.S.C. § 1252. For the reasons set forth below we grant Albillo-DeLeon's petition and remand to the BIA for further proceedings.

I. Factual and Procedural Background

Albillo-DeLeon, a native and citizen of Guatemala, entered the United States without inspection on February 29, 1988. He has lived continuously in the United States for the last seventeen years. On May 3, 1988, shortly after arriving in the United States, Albillo-DeLeon applied for asylum. On April 3, 1989, the Immigration and Naturalization Service ("INS")¹ issued Albillo-DeLeon an Order to Show Cause, charging that he was deportable because he entered the United States without inspection. Albillo-DeLeon appeared at a deportation hearing and conceded deportability.

At the deportation hearing, Albillo-DeLeon sought asylum, withholding of deportation, and voluntary departure. On November 17, 1989, the IJ denied Albillo-DeLeon's application for asylum and withholding of deportation but granted his request for voluntary departure. Albillo-DeLeon appealed this decision to the BIA. The BIA dismissed his appeal without opinion.

A. Implementation of NACARA

On November 19, 1997, Congress passed the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), Pub.L. No. 105-100, 111 Stat. 2160 (1997), amended by Pub.L. No. 105-139, 111 Stat. 2644 (1997). NACARA established special rules to permit certain classes of aliens, including nationals of Guatemala, to apply for "Special Rule Cancellation." Special Rule Cancellation allows designated aliens to qualify for cancellation under the more lenient suspension of deportation standard that existed before the passage of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (1996). See Munoz v. Ashcroft, 339 F.3d 950, 955-56 (9th Cir.2003).

1. Filing a Motion to Reopen Under § 203(c)

NACARA section 203(c) allows an alien one opportunity to file a petition to reopen his or her deportation or removal proceedings to obtain cancellation of removal. A motion to reopen will not be granted unless an alien can demonstrate prima facie eligibility for relief under NACARA. See Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.2003). An alien can make such a showing if he or she has complied with section 203(a)'s filing deadlines, is a native of one of the countries listed in NACARA, has lived continuously in the United States for at least ten years, has not been convicted of any crimes, is a person of good moral character, and can demonstrate extreme hardship if forced to return to his or her native country.² See NACARA §§ 203(a),(b), and (c); see also 8 C.F.R. § 1003.43(b) (2004). Such a showing need not be conclusive but need suggest only that it would be "worthwhile" to reopen proceedings. Ordonez, 345 F.3d at 785.

2. Deadline for Filing a Motion to Reopen under § 203(c)

Section 203(c) does not identify by date the deadline for filing a motion to reopen deportation or removal proceedings. Instead, the statute states:

The Attorney General shall designate a specific time period in which all such motions to reopen are required to be filed. The period shall begin not later than 60 days after the date of the enactment of the Nicaraguan Adjustment and Central American Relief Act and shall extend for a period not to exceed 240 days.

NACARA § 203(c). By regulation, the Attorney General set the deadline at September 11, 1998. See 8 C.F.R. § 1003.43(e)(1) (2004) (formerly 8 C.F.R. § 3.43(e)(1) (2002)).³

B. Albillo-DeLeon's Motion to Reopen Proceedings

On September 10, 1998, Albillo-DeLeon retained Jovel Mendez, who he believed to be an attorney, to file on his behalf a motion to reopen proceedings pursuant to section 203(c). After the filing deadline passed, Albillo-DeLeon did not receive any correspondence from the Immigration Court or from Mendez. He followed-up with Mendez, requesting information regarding the status of his motion.

Mendez assured Albillo-DeLeon that the motion had been filed. Nevertheless, rather than provide Albillo-DeLeon with specific information regarding the status of Albillo-DeLeon's motion, Mendez demanded additional money to investigate further. Albillo-DeLeon refused to pay and became suspicious of Mendez.

In September 1999, Albillo-DeLeon went to the Immigration Court, where a court clerk informed him that the court had no record of Albillo-DeLeon's motion. The clerk directed Albillo-DeLeon to file a request under the Freedom of Information Act ("FOIA") to learn definitively the status of his motion. Per the clerk's instructions, Albillo-DeLeon filed a FOIA request. On April 3, 2000, Albillo-DeLeon received a copy of his court file and learned that Mendez never filed the motion. Albillo-DeLeon also learned for the first time that Mendez was not an attorney but an immigration consultant and notario.⁴

On August 2, 2000, Albillo-DeLeon retained new counsel and successfully filed a motion to reopen with the BIA. In his motion, Albillo-DeLeon requested that the time limitation for filing his motion be equitably tolled because of ineffective assistance of counsel. Albillo-DeLeon explained that he failed to meet the September 11, 1998, filing deadline only because he believed Mendez's representations that he was an attorney and that he would timely file Albillo-DeLeon's motion to reopen. On May 10, 2001, the IJ denied the motion as untimely and refused to equitably toll the deadline. Albillo-DeLeon appealed the denial to the BIA. On January 31, 2002, the BIA affirmed the IJ's decision without opinion. This appeal followed.

II. Discussion

A. Standard of Review

The BIA's interpretation and application of immigration laws is generally entitled to deference. See Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). Nevertheless, we are not obligated to accept an interpretation that is demonstrably irrational or clearly contrary to the plain and sensible meaning of the immigration laws. See id.; Jahed v. INS, 356 F.3d 991, 997 (9th Cir.2004). Because the BIA did not perform an independent review of the IJ's decision and instead deferred to the IJ, we review the IJ's decision. See Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir. 2004).

B. Albillo-DeLeon Is Likely Eligible for "Special Rule Cancellation"

Albillo-DeLeon is likely to demonstrate a prima facie case for "Special Rule Cancellation" relief. He is a native of Guatemala who applied for asylum on May 3, 1988, and has lived continuously in the United States since February 29, 1988. He has not been convicted of any crimes and is a person of good moral character. Albillo-DeLeon is sixty years-old. He is married, lives with, and supports at least four of his children. Two of these children were born in the United States. After seventeen years in the United States, forcing Albillo-DeLeon to return to Guatemala would likely pose an extreme hardship. See Baltazar-Alcazar v. INS, 386 F.3d 940, 949 (9th Cir.2004) (suggesting that courts review, among other things, the petitioner's age, length of residence in the United States, and family ties in the United States when making a hardship determination). Thus, it is likely that Albillo-DeLeon would be successful should his motion to reopen be deemed timely.

C. Section 203 Is a Statute of Limitations

The pivotal issue in this case is whether section 203(c)'s limitation period operates as a jurisdictional prerequisite or a statute of limitations, because only a statute of limitations may be subject to equitable tolling. Statutes of limitation are primarily designed to assure fairness to defendants and to promote the theory that "even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965) (quoting Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49, 64 S.Ct. 582, 88 L.Ed. 788 (1944)). Further, such limitations relieve courts of the burden of adjudicating stale claims when a plaintiff has slept on his rights. See id.

In contrast, a limitation period is not subject to equitable tolling if it is jurisdictional in nature. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). A jurisdictional time limitation cannot be modified, and noncompliance with such a limitation is an absolute bar. See Miller v. N.J. State Dep't of Corrs., 145 F.3d 616, 617-18 (3d Cir.1998).

When determining whether a statute of limitations is jurisdictional or merely a time limitation subject to equitable tolling, the Supreme Court has recognized that, while several factors must be examined, the main purpose of the inquiry is to discover congressional intent behind the statute. See Shendock v. Dir., Office of Workers' Comp. Programs, 893 F.2d 1458, 1462 (3d Cir.1990) ("[A]ttachment of the label `jurisdiction' to a statute's filing requirements without...