Kuusk v. Holder

• Citation: 732 F.3d 302
• Decision Date: 16 October 2013
• Docket Number: No. 12–2367.,12–2367.
• Parties: Svetlana KUUSK, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

732 F.3d 302

Svetlana KUUSK, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 12–2367.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 17, 2013.

Decided: Oct. 16, 2013.

ARGUED:Jonathan Scott Greene, Greene Law Firm, LLC, Columbia, Maryland, for Petitioner. Nicole N. Murley, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Stuart F. Delery, Acting Assistant Attorney General, William C. Peachey, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before MOTZ and DIAZ, Circuit Judges, and JOHN A. GIBNEY, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

Petition for review denied by published opinion. Judge MOTZ wrote the opinion, in which Judge DIAZ and Judge GIBNEY joined.

DIANA GRIBBON MOTZ, Circuit Judge:

Svetlana Kuusk, an Estonian-born citizen of Russia, petitions this court for review of an order by the Board of Immigration Appeals (“BIA”) denying her untimely motion to reopen removal proceedings. Kuusk argues that the BIA erroneously concluded that her circumstances did not warrant equitable tolling of the statutory filing deadline. We deny Kuusk's petition for review.

I.

On June 1, 2003, Kuusk entered the United States on a four-month J–1 visa. She overstayed her visa. On October 12, 2005, she was served with a notice to appear before an immigration judge (“IJ”). Kuusk conceded her removability before the IJ, but applied for asylum and withholding of removal pursuant to 8 U.S.C. § 1158 and § 1231(b)(3) (2006), respectively. The IJ denied both applications.

Kuusk timely appealed the IJ's decision to the BIA. During the pendency of her appeal, Kuusk married a citizen of the United States. On October 18, 2011, Kuusk attended an “InfoPass” appointment with a U.S. Customs and Immigration Services (USCIS) officer. Kuusk contends that this officer informed her that she “could file for a marriage-based green card directly with the USCIS based on [her] marriage to a U.S. citizen ... even though [her] case was currently on an asylum appeal from the immigration court,” and that “if anything was wrong with the filing, it would be rejected or [she] would be notified.” AR 24. She further contends that she understood these words to mean that she did not additionally need to pursue her case before the BIA regarding her removal proceedings.

A week after receiving the USCIS officer's advice, on October 25, Kuusk informed her immigration attorney via e-mail of her plan “to file papers now through marriage.” AR 36. Her attorney responded the same day, warning her:

Remember that for immigrants in proceedings—getting a marriage green card please know that you your case before the final decision. This not meet it, nothing is complicated.... Also, need to file a motion to reopen BIA within 90 days of ... its deadline is firm, and if you do can be done. Don't mess around, [and] be sure you do everything right.

Id. On November 30, 2011, the BIA adopted and affirmed the IJ's denial of Kuusk's application for asylum, and entered a final order of removal. Eleven days later, on December 11, Kuusk's attorney notified her of the denial via e-mail and warned her that she “now ha[d] about 70 days to file a motion to reopen the case based upon marriage to a U.S. citizen,” and that if she “wait [ed] beyond that period, [her] removal order w[ould] become fixed and [she would] not be able to remain in the [United States] legally.” AR 37.

Kuusk did not file a motion to reopen her case within ninety days of the BIA's final order (i.e., by February 28). On March 22, 2012, the USCIS denied Kuusk's I–485 application for a green card because she was subject to a deportation order.

Six weeks later, Kuusk filed an untimely motion to reopen her removal proceedings to seek adjustment of her immigration status. Kuusk asked the BIA to apply equitable tolling principles and disregard her untimeliness because of her reliance on the USCIS officer's assertedly incorrect advice, or to exercise its authority to reopen her case sua sponte.

The BIA denied Kuusk's motion. Applying the equitable tolling standard that we have applied in other contexts, the BIA concluded that Kuusk had failed to show that: (1) wrongful conduct by the opposing party prevented her from timely asserting her claim; or (2) extraordinary circumstances beyond her control made it impossible for her to comply with the statutory time limit. See Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.2000). Kuusk noted a timely appeal.^*

We review the BIA's legal conclusions de novo, giving appropriate deference to its interpretation of the Immigration and Nationality Act (INA) in accordance with principles of administrative law. Hui Zheng v. Holder, 562 F.3d 647, 651 (4th Cir.2009). “We review denials of motions to reopen claims for asylum and claims for withholding of [removal] under an abuse of discretion standard.” Id.

II.

The statutory filing deadline at issue here provides that a motion to reopen removal proceedings “shall be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i) (2006). Every circuit to have addressed the issue has held that this provision constitutes a statute of limitations to which the principles of equitable tolling apply. See Avila–Santoyo v. U.S. Att'y Gen., 713 F.3d 1357, 1363–64 (11th Cir.2013) (per curiam); Hernandez–Moran v. Gonzales, 408 F.3d 496, 499–500 (8th Cir.2005); Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.2005); Harchenko v. INS, 379 F.3d 405, 410 (6th Cir.2004); Riley v. INS, 310 F.3d 1253, 1258 (10th Cir.2002); Socop–Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir.2001) (en banc); Iavorski v. U.S. INS, 232 F.3d 124, 130 (2d Cir.2000). Although this court has not previously addressed the issue, we agree with our sister circuits and now hold that § 1229a(c)(7)(C)(i) sets forth a limitations period that can be equitably tolled.

The Government and Kuusk also agree that the statute contains a limitations period that can be equitably tolled; they disagree, however, as to what standard must be met to establish a basis for equitable tolling. Kuusk argues that the BIA erred in applying the standard we set forth in Harris, 209 F.3d at 330. The Government contends that the BIA acted within its discretion in applying the Harris standard.

In Harris, we addressed equitable tolling in the context of a petition for a writ of habeas corpus. We held equitable tolling to be proper only when (1) “the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant”; or (2) “extraordinary circumstances beyond plaintiffs' control made it impossible to file the claims on time.” Id. (internal quotation mark omitted). We recognized that “any invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes.” Id. To apply the doctrine generously “would loose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation.” Id.

We concluded in Harris that this rigorous standard was necessary to ensure that “any resort to equity ... be reserved for those rare instances where—due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Id. Subsequently, we have applied the Harris standard in other contexts. See Gayle v. United Parcel Serv., Inc., 401 F.3d 222, 227 (4th Cir.2005) (ERISA); Chao v. Va. Dep't of Transp., 291 F.3d 276, 283 (4th Cir.2002) (FLSA).

Kuusk argues, however, that the BIA should not have applied the Harris standard in the context of motions to reopen removal proceedings, but instead should have adopted a more lenient equitable tolling standard. She relies on the equitable tolling standards articulated by other circuits in cases involving untimely motions to reopen removal proceedings.

To be sure, the precise wording used to address the appropriateness of equitable tolling in these cases differs from that in Harris. See, e.g., Socop–Gonzalez, 272 F.3d at 1193 (applying equitable tolling when, “despite all due diligence, [the party invoking equitable tolling] is unable to obtain vital information bearing on the existence of the claim ... [due to] circumstances beyond the party's control” (first alteration in original)); Hernandez–Moran, 408 F.3d at 499–500 (“Equitable tolling is granted sparingly. Extraordinary circumstances far beyond the litigant's control must have prevented timely filing.” (alteration omitted)); Borges, 402 F.3d at 406–07 (explaining that petitioner must show both that he exercised due diligence and that extraordinary circumstances, like fraud, prevented him from timely asserting his claim).

But in none of the cases on which Kuusk relies, or in any other, has a sister circuit fashioned a special, more lenient equitable tolling standard for immigration proceedings. Rather, each of our sister circuits applies, in immigration cases, its general standard for equitable tolling. Most importantly, although differently worded, each of those standards, like that in Harris, adheres to the general principle that equitable tolling will be granted “only sparingly,” not in “a garden variety claim of excusable neglect.” Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).

Kuusk has provided us with no rationale to support her argument that we should fashion a special standard to apply in immigration cases, and we see no reason to do so. Thus, we hold that the Harris standard applies to untimely motions to reopen removal proceedings. The BIA did not err in applying that standard in this...