Patel v. Gonzales

• Decision Date: 30 March 2006
• Docket Number: No. 04-3401.,No. 05-1687.,No. 04-4159.,04-3401.,04-4159.,05-1687.
• Parties: Sunita PATEL, Kamarkant Patel, Pallavi Patel, and Kalpana Patel, Petitioners, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1011

442 F.3d 1011

Sunita PATEL, Kamarkant Patel, Pallavi Patel, and Kalpana Patel, Petitioners, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 04-3401.

No. 04-4159.

No. 05-1687.

United States Court of Appeals, Seventh Circuit.

Argued October 19, 2005.

Submitted February 1, 2006^*.

Decided March 30, 2006.

Mary L. Sfasciotti (argued), Chicago, IL, for Petitioners.

George P. Katsivalis, Karen Lundgren, Department of Homeland Security Office of the District Counsel, Chicago, IL, Bryan S. Beier, Barry Pettinato (argued), Jennifer A. Levings, Department of Justice Civil Division, Immigration Litigation, Washington, DC, John K. Mehochko, Office of U.S. Atty., Rock Island, IL, for Respondent.

Before MANION, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

These petitions present, in the aggregate, the claims of four members of the Patel family who are seeking asylum, withholding of deportation, and relief under the Convention Against Torture (CAT). In Nos. 04-3401 and 04-4159, Sunita Patel is petitioning for review of two decisions of the Board of Immigration Appeals (BIA): the first one denied her motion to reopen her asylum proceedings, and the second one denied her motion to reconsider the denial of the motion to reopen. In No. 05-1687, Kamarkant Patel (Sunita's father), his wife Pallavi Patel, and his oldest daughter Kalpana Patel, petition for review of the BIA's decision denying their motions to reopen their cases so that they might reapply for asylum, withholding of deportation, and relief under the CAT. All four argue, in essence, that their experience with the immigration system of this country has resembled nothing as much as the bureaucracy in Franz Kafka's Castle, where no answers are ever consistent, contradictions abound, and frustration is the only outcome. While we have some sympathy with their plight, it is not entirely of the Board's making. Moreover, the relief they are seeking lies within the Board's discretion, and we cannot say that the Board abused that discretion in any of these cases. We therefore deny the petitions for review.

I

A. Initial Proceedings

Kamarkant Patel was born on June 12, 1953, in Lichtenburg, South Africa; he is of Indian/Asian ancestry, as are approximately 2.5% of the people in South Africa, according to the CIA's World Factbook. See http:// www.cia.gov/publications /factbook/geos/sf.html. Pallavi Patel, Kamarkant's wife, was born in India, but she later became a naturalized South African citizen. The couple have three daughters, all of whom were born in South Africa: Kalpana, Minal, and Sunita. As members of the Indian minority in that country, the family had been a target of violence, persecution, and harassment from both blacks and whites in apartheid South Africa. (South Africa recognizes April 27, 1994, as its Freedom Day; not until then was the apartheid regime at last officially ended. Id.) When the grocery store by which the Patels made their living was burned to the ground, they decided that they had no choice but to flee. They entered the United States on August 23, 1991, on visitors' visas, and immediately retained an attorney, Archana O'Chaney, to help them pursue asylum claims.

With the assistance of counsel, Kamarkant filed his asylum application on August 8, 1992, naming himself as the primary applicant and his wife and three daughters (then ages nine, 12, and 13) as derivative applicants. Initially, the asylum officer at the Bureau of Human Rights and Humanitarian Affairs of the Department of State prepared an Assessment Sheet, in which he found the Patels' story to be credible and recommended that they be granted asylum based on their race and nationality. No final action took place, however, until October 1994, when the former Immigration and Naturalization Service (INS) issued a notice of intent to deny asylum. The issuing officer also thought that Kamarkant's testimony about the hard-ships the family had suffered in South Africa was credible, but he concluded that country conditions had changed so radically since the family's departure that it was unlikely that their problems would continue if they returned. Unfortunately, O'Chaney never informed them about this turn of events, and thus they were deprived of the opportunity to present additional evidence to the INS.

In the summer of 1996, the INS formally denied Kamarkant's application for asylum, and all five members of the family were served individually with Orders To Show Cause why they should not be deported. They responded with a second joint asylum application in March 1997. That led to a hearing on October 1, 1997, at which Kamarkant testified. He stated that he had owned a grocery store in South Africa. On several occasions, soldiers or other people had accosted him on the street and stolen his groceries or his money. His car was stolen and burned; when he reported this incident to the police, they failed to create a formal report about it. Kamarkant admitted that the police had not harmed, bothered, or harassed him, but that on numerous occasions soldiers had entered his store and taken groceries without paying. In June 1991, the store was burned "by the natives" (as he put it). It was not safe for him to drive his children to school, he reported, because sometimes "natives" would get into the car with him and make him give them rides. He and his family were also subjected to threats, including one threat to rape Sunita, then five years old.

At the conclusion of this hearing, the Immigration Judge (IJ) denied the petition for asylum and withholding of deportation, but he granted the family voluntary departure. At the family's request, O'Chaney filed a timely notice of appeal to the BIA from that decision. That notice indicated that they would be filing a separate brief in support of their appeal, but no such brief was ever filed. Years later, on March 8, 2002, the BIA summarily dismissed the appeal for failure to file a separate brief or reasonably to explain the absence of the brief. The Board did, however, confirm the IJ's decision to grant the family voluntary departure. Once again, the family never received notice of the BIA's decision, either from O'Chaney or otherwise. Consequently, they failed to depart within the permitted time period and thus violated the terms of the Board's order. In June 2002, the BIA issued a final order of deportation in absentia.

B. Minal Patel

At this point, the paths of the various family members diverged. We begin with the one family member not involved in these petitions, Minal. Minal married a United States citizen in July 1999 and applied a few months later for an adjustment of status based on her husband's immediate-relative petition. Those applications also languished for a couple of years, but in August 2002 Minal received notice that her request for adjustment of status could not be adjudicated because she was under an order of deportation. At that point, Minal sought new counsel and filed a request under the Freedom of Information Act (FOIA) for a copy of her immigration file. The government apparently responded promptly and sent the file to her; upon reviewing it, she learned that the order of deportation had indeed been entered when her family's appeal was dismissed in June 2002. In November 2002, Minal moved to reopen her asylum proceedings, alleging ineffective assistance of counsel. She also renewed her request for adjustment of status. She was successful: the BIA ruled that she was entitled to equitable tolling of the time limit for motions to reopen and it reopened her case. In February 2004, she was granted adjustment of status.

C. Sunita Patel

In the meantime, Sunita had also married a United States citizen, in February 2002; she applied within a month to have her status adjusted. Despite the action on Minal's similar application in late 2002, the agency did not inform Sunita at that time that she too could not pursue adjustment of status while she was under the June 2002 order of deportation. Only in May 2004, during an interview with immigration officers in connection with her application, was she told that the application could not be processed because of the order of deportation. Around the same time, she received a letter to the same effect from the agency. Sunita retained the same lawyer who had succeeded in Minal's case, and filed a motion to reopen her own case within 30 days of the government's letter. Sunita's motion was essentially identical to Minal's, and also relied on ineffective assistance of counsel as the basis for raising an independent asylum claim. Underscoring the relatedness of the two cases, Sunita attached a number of documents to her motion that had been submitted in Minal's case, including affidavits from Kamarkant and Minal attesting to the negligence of the former lawyer. In July 2004, Sunita received a notice that her husband's immediate-relative petition had been approved; she promptly amended her motion to reopen to have that fact taken into consideration.

In contrast to Minal's success in her petition to reopen, Sunita met with failure. The Board first observed that she had failed to satisfy the time limit for motions to reopen found in 8 C.F.R. § 1003.2(c)(2), based on 8 U.S.C. § 1229a(c)(7)(C)(ii). It concluded that equitable tolling was not appropriate for Sunita, because it inferred from all the facts that Sunita had been aware since the time Minal received the response to her FOIA request that she was under an order of deportation. Unlike Minal, who acted promptly at that point, Sunita had waited nearly two years before filing her own motion to reopen—an action the Board deemed inconsistent with the exercise of due diligence. This is the first order Sunita has asked us to review, in No. 04-3401.

In addition to petitioning this court for review, Sunita also filed a motion to reconsider with the Board. In that motion, she argued that there...