Jobe v. Immigration & Naturalization Service, No. 99-1064

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore Stahl, Circuit Judge, Bownes, Senior Circuit Judge, and Lipez; Bownes; STAHL
Citation212 F.3d 674
Docket NumberNo. 99-1064
Decision Date05 November 1999
Parties(1st Cir. 2000) SULAY JOBE, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. Heard

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212 F.3d 674 (1st Cir. 2000)
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 May 24, 2000

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Copyrighted Material Omitted

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

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 Stahl, Circuit Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge.

Bownes, Senior Circuit Judge.

Petitioner, Sulay Jobe, was ordered deported in absentia and failed to move to rescind that order within the 180 days allowed pursuant to § 242B(c)(3)(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252b (1994). 1 We note at the outset that the statutory provision at issue relating to the filing deadline has been repealed but replaced by a new provision which is essentially the same. 2 We also note that the parties agree that Pre-IIRIRA law applies.

Jobe alleges that both his failure to attend the hearing and his failure to file a timely motion were the result of ineffective

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assistance of counsel. We hold that the doctrine of equitable tolling applies to create an exception to the 180-day period for filing if the failure to timely file was the result of ineffective assistance of counsel. For the following reasons, we grant Jobe's petition for review and remand to the Board of Immigration Appeals ("BIA") with instructions to remand to the Immigration Court for further proceedings consistent with this opinion.

I.

The facts are taken from the administrative record. Jobe is a native and citizen of Gambia who allegedly does not read, write or speak English. He entered the United States on or about June 19, 1994, as a nonimmigrant visitor for business. He was authorized to remain in the United States until July 18, 1994. Without authorization from the Immigration and Naturalization Service ("INS"), he remained in the United States beyond that date. On September 9, 1994, Jobe voluntarily contacted the INS and filed an application for political asylum. On February 6, 1996, Jobe was informed that his application was denied, and his case was referred to an Immigration Judge ("IJ") for a hearing.

On February 14, 1996, the INS served Jobe with an Order to Show Cause ("OSC") and Notice of Hearing. The OSC charged Jobe with remaining in the United States longer than permitted, in violation of § 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B) (1994). The hearing was scheduled for May 22, 1996 in Boston, Massachusetts. Because Jobe does not read, write or speak English, he contacted a friend from his native country to arrange for legal representation. Through his friend, Sulay Bah, Jobe retained attorney Earl S. David to represent him in his asylum proceedings.On April 12, 1996, Attorney David wrote to the Immigration Court in Boston, requesting a change of venue to New York because Jobe had moved there. Prior to the hearing of May 22, 1996, Jobe contacted Attorney David (through Bah) to inform him that he would be unable to attend the May 22 hearing because of a back injury. Bah reported to Jobe that he had contacted Attorney David, who informed him that the case had already been transferred to New York and that Jobe would be contacted when the court set a new hearing date.

Neither the petitioner nor his attorney were present at the May 22 hearing. The IJ found that Jobe had abandoned his claims for relief and ordered him deported. Jobe alleges that he knew nothing of this deportation order until he filed an application to renew his employment authorization. The INS denied that employment application on December 4, 1996 because of the previous in absentia deportation order.

On February 11, 1997, Jobe moved, through new counsel, to reopen and stay the deportation proceedings. He argued that his failure to appear at his asylum hearing was the result of both exceptional circumstances under INA § 242B(c)(3)(A) and lack of proper notice under INA § 242B(c)(3)(B).

On February 12, 1997, the IJ denied Jobe's Request for Stay of Deportation and Motion to Reopen. The IJ dismissed Jobe's claim of exceptional circumstances as untimely, noting that pursuant to § 242B(c)(3)(A) of the INA, an order of deportation rendered in absentia may be rescinded by filing, within 180 days of the IJ's order, a motion to reopen based upon exceptional circumstances. The IJ denied Jobe's motion to reopen on the ground that Jobe filed his motion more than two months late, some eight months after the court issued its order.

The IJ also rejected Jobe's claim that he did not receive proper notice of the hearing. The IJ found that Jobe was personally served with the Notice of Hearing and that the INA did not require that the notice be read to Jobe in his native language. The IJ further noted that the OSC

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clearly indicated the consequences of Jobe's failure to appear.

Jobe appealed the IJ's order to the BIA on March 10, 1997. He argued that the IJ erred in denying his motion to reopen because his failure to appear at the original hearing and his failure to timely file his motion to reopen were caused by ineffective assistance of counsel. He also argued that the IJ erred in denying his motion to reopen where "the Court's own failure to respond to Respondent's former counsel's request to change venue was the proximate cause of Respondent's unawareness of his asylum hearing date."

On December 15, 1998, the BIA dismissed Jobe's appeal. The BIA upheld the IJ's denial of the motion to reopen because Jobe was "statutorily barred from rescinding the deportation order on the basis of exceptional circumstances" since his motion was filed beyond the 180-day limitation imposed by § 242B(c)(3)(A). The BIA dismissed the claim that Jobe did not receive proper notice of the hearing, holding that "the [IJ's] failure to rule upon the motion to change venue did not excuse the respondent's duty to appear at the previously-scheduled deportation hearing." It can be fairly inferred that the BIA felt it had no jurisdiction to even evaluate the merits of Jobe's ineffective assistance of counsel claim.

We think it advisable to state explicitly that our statement of the facts as recited in the administrative record is not to be construed as implied findings by us or any kind of a signal to the IJ.

Petitioner appeals the decision of the BIA to this court, on the ground that the BIA erred in determining that he was statutorily time-barred from seeking recission of the deportation order on the basis of exceptional circumstances under INA § 242B(c)(3)(A). The petitioner argues that the BIA failed to consider that exceptional circumstances existed because of ineffective assistance of counsel. He has abandoned the improper notice claim.

II.

We review legal conclusions of the BIA de novo. See Meguenine v. INS, 139 F.3d 25, 27 (1st Cir. 1998); see also Wallace v. Reno, 194 F.3d 279, 280-81 (1st Cir. 1999); Debab v. INS, 163 F.3d 21, 24 (1st Cir. 1998). The Respondent, in its brief, contends that the BIA's denial of a motion to reopen is reviewed under the abuse of discretion standard. In this case, the BIA denied Jobe's motion to reopen based on exceptional circumstances on the ground that it was statutorily time-barred. The BIA did not exercise any discretion in determining that the petitioner filed his motion beyond the 180-day time limit; indeed, it appears that the BIA believed that it had no discretion. This, therefore, is a purely legal question, warranting de novo review by this court.

As an initial matter, we conclude that we have jurisdiction to consider the issue of whether there may be an equitable exception to the 180-day time bar. "[I]ssues not raised before the BIA may not be raised for the first time on a petition to review." Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999). Jobe's brief before the BIA was not a model of effective legal argument, but it was sufficient to bring the issue to the attention of the BIA. This fact is evident from the BIA's decision, which addressed the issue by holding that "a claim of ineffective assistance of counsel does not constitute an exception to the 180-day statutory limit for the filing of a motion to reopen to rescind an in absentia order of deportation under section 242B(c)(3)(A) of the Act, on the basis of exceptional circumstances." A.R. at 3 (citing Matter of Lei, Interim Decision 3356 (BIA 1998)).

Jobe argues that "[t]he Board of Immigration Appeals erred in deciding that [it was] statutorily barred from rescinding the deportation order on the basis of exceptional circumstances under [former INA] Section 242B(c)(3)(A)." Pet'r Br. at 10. That subsection provided for the recission

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of a deportation order entered in absentia as follows:

(3) RECISSION OF ORDER--Such an order may be rescinded only

(A) 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), 3 or

(B) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with subsection (a)(2) of this section or if the alien demonstrates that the alien was in Federal or State custody and did not appear through no fault of the alien.

INA § 242B(c)(3), 8 U.S.C. § 1252b(c)(3).

In seeking to avoid subsection (c)(3)(A)'s time bar, Jobe essentially argues that the 180-day filing requirement is subject to equitable tolling. 4 The doctrine of equitable tolling applies "to prevent unjust results or to...

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