Gaberov v. Mukasey

• Decision Date: 19 February 2008
• Docket Number: No. 07-1417.,07-1417.
• Citation: 516 F.3d 590
• Parties: Simeon GABEROV, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

516 F.3d 590

Simeon GABEROV, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 07-1417.

United States Court of Appeals, Seventh Circuit.

Argued November 27, 2007.

Decided February 19, 2008.

John W. Kearns, Grant E. Smith, Chicago, IL, Mary Bluma (argued), Chicago, IL, for Petitioner.

Benjamin J. Zeitlin (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before MANION, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge.

Simeon Gaberov applied for asylum based on his alleged persecution by the communist party in his native Bulgaria. The immigration judge (IJ) denied the application, and Gaberov timely appealed. The Board of Immigration Appeals (BIA) affirmed the IJ's decision without opinion and claims to have mailed an appropriate notice to Gaberov's attorney. Gaberov, however, asserts that neither he nor his attorney ever received a decision regarding his case. The only communication they received was a letter addressed to Gaberov's attorney containing a decision for an unrelated individual, Elena Endriuliene. Years later, Gaberov received a "bag and baggage" letter, instructing him to report for deportation. He subsequently filed a motion to reopen, alleging the foregoing facts and offering the Endriuliene decision as evidence that he never received proper notice. The BIA denied the motion as untimely. Gaberov then filed a motion to reconsider, which, the BIA also denied. He now petitions for review.

Gaberov, a 67-year-old native and citizen of Bulgaria, was admitted to the United States in June 1990 as a nonimmigrant visitor for pleasure and was authorized to remain in the country for 6 months. In September, he filed an application for asylum with the former Immigration and Naturalization Service (INS),¹ claiming that he had suffered and would continue to suffer persecution by the communist party in Bulgaria. According to Gaberov, his persecution began while he worked as a mechanic in a government-owned factory in Blagoevgrad. Gaberov and a coworker, Ivan Svetetsov, established a branch of a labor union at their place of employment to oppose the mistreatment of workers. As a result, the two men were transferred to separate cities and ultimately fired. Svetetsov successfully brought legal action against his former employer but was found dead by hanging soon after. Upon learning of Svetetsov's apparent murder, Gaberov left for the United States.

The INS declined to grant Gaberov's application for asylum in January 1996.² At that time, the INS filed an order to show cause (OSC) with the immigration court in Chicago, stating that Gaberov was subject to deportation for having remained in the United States beyond the time authorized. In May, Gaberov appeared before the IJ without counsel, and the hearing was rescheduled to enable Gaberov to find representation. In September, Gaberov appeared with his attorney, Alexander Vrbanoff, and admitted the allegations in the OSC.

In July 1998, the IJ issued a decision denying Gaberov's application for asylum and withholding of deportation but granting him voluntary departure. Gaberov filed a timely notice of appeal with the 131A. While his appeal was pending, Gaberov retained new counsel because his former attorney was suspended from practicing law. Gaberov's new attorney, Tzvetelina Boynovska, filed a notice of entry of appearance with the BIA and requested that all materials be mailed to her office.

On June 13, 2002, the BIA affirmed without opinion the IJ's decision. The cover letter for the BIA's decision indicates that it was mailed on that date to the address provided by Boynovska. According to Gaberov, however, neither he nor his counsel ever received notice of the decision. The only communication they received from the BIA was a cover letter addressed to Boynovska dated June 13, 2002, along with the decision in a case involving an unrelated individual, Elena Endriuliene. Gaberov now asserts that, upon receiving the notice, Boynovska contacted the BIA but was informed that Gaberov's appeal was still pending. He also claims that Boynovska and he went to the Chicago CIS office shortly thereafter. There, they were assured that Gaberov could not be deported because the decision he received did not refer to his name or the number of his case. Thus, Gaberov continued to wait for his decision.

In December 2002, Gaberov married Stefka Milkova, a United States citizen with whom he began a romantic relationship in 1997. Milkova subsequently filed an 1-130 visa petition on behalf of Gaberov. In June 2005, Gaberov and Milkova appeared before CIS Officer Lisa Ubaldo for adjudication of the petition. During the interview, Gaberov presented the notice he received from the BIA. According to Gaberov, Ubaldo informed the couple that, although it appeared that the BIA had issued a decision in Gaberov's case, it was not binding because he received insufficient notice. As a result, Ubaldo did not execute the final order of removal against Gaberov. Instead, she approved the 1-130 petition, finding that Milkova and Gaberov's marriage was bona fide.

Later that month, Gaberov received a "bag and baggage" letter from the ICE, advising him to appear at their Chicago office completely ready for deportation on September 8. This came as quite a surprise to Gaberov after his conversation with Ubaldo. So, he filed an 1-246 application to stay his deportation. Nevertheless, Gaberov followed instructions and appeared at the Chicago office twice for his "bag and baggage" appointments. On the second occasion, Gaberov's 1-246 application was granted because CIS officers determined that he was not properly notified of the BIA's decision.

In April 2006, Gaberov filed a motion to reopen with the BIA, alleging that he was now eligible for an adjustment of status based on his approved visa application. Gaberov argued that he never received notice of a decision in his case from the BIA and attached the Endriuliene decision as evidence. Gaberov also asked the BIA to exercise its discretion and grant his motion because of the favorable factors present in his case. Specifically, Gaberov's wife suffers with a permanent back injury and needs his care. He also has a close relationship to his son, Vasil, a lawfully permanent resident, Vasil's wife, Stella, and their citizen children, Rosemary and Simon. During his 17 years in the United States, Gaberov has run his own construction business, paid his taxes, and never had any adverse contact with law enforcement. The BIA denied the motion to reopen as untimely, briefly citing to 8 C.F.R. § 1003.2(c)(2) and making no mention of the defective notice.

Gaberov subsequently filed a timely motion to reconsider, realleging nonreceipt of the BIA's June 13, 2002, decision and the special circumstances of his case. He also set forth facts relating to his visa application and Officer Ubaldo's determination that he had been provided with insufficient notice. Gaberov offered several documents as evidence, including the approved 1-130 visa application and the Endriuliene decision. The BIA denied the motion to reconsider, concluding that Gaberov "was on notice in 2002 that a Board decision had been issued in his case." Despite Gellerov's submission of the Endriuliene decision and cover letter, the BIA found that "[t]here is no affidavit or other evidence from former counsel disclaiming receipt of the Board's decision." The BIA also declined to equitably toll the filing period because Gaberov failed to establish due diligence in ascertaining the status of his appeal.

We review the BIA's denial of a motion to reconsider for an abuse of discretion. Laboski v. Ashcroft, 387 F.3d 628, 631 (7th Cir.2004). The BIA's legal findings are reviewed de novo, but we give deference to the BIA's construction of the statutes it administers. Marquez v. I.N.S., 105 F.3d 374, 378 (7th Cir.1997). Gaberov argues that the BIA committed one of two errors:. (1) determining that his motion to reopen was untimely filed, or (2) declining to equitably toll the time limitations for filing a motion to reopen.

The first issue is whether the BIA correctly concluded that Gaberov's motion to reopen was untimely filed. The parties agree that a motion to reopen must ordinarily be filed within 90 days of the date on which the final administrative decision was rendered in the proceedings sought to be reopened. See 8 C.F.R. § 1008.2(c)(2). Because Gaberov did not file his motion to reopen until April 2006—almost 4 years after the BIA's June 2002 decision—it will be untimely unless an exception applies. See id. § 1003.2(c)(3).

Gaberov argues that his case falls under the exception for a motion to reopen "[titled pursuant to the provisions of § 1003.23(b)(4)(iii)(A)(2)." Id. § 1003.2(c)(3)(i). We disagree. That section, titled "Order entered in absentia in deportation or exclusion proceedings," states that "[a]n order entered in absentia in deportation proceedings may be rescinded only upon a motion to reopen filed ... [a]t any time if the alien demonstrates that he or she did not receive notice[.]" Although there is strong evidence that Gaberov did not receive notice, the exception does not apply because he did not seek to reopen an in absentia deportation order. In fact, Gaberov does not allege that he ever received an in absentia order. Rather, he argues that the exception applies to all motions to reopen. His attempt to construe the statute differently is not persuasive. The plain language of the provision indicates that it only applies to motions to reopen in absentia deportation orders. Thus, the BIA correctly determined that Gaberov's motion to reopen was untimely.

The second issue is whether the BIA erred when it declined to equitably toll the time limitations for filing a motion to reopen. The 90-day deadline is a statute of limitations and therefore subject to equitable tolling. Pervaiz v....