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En Banc Ninth Circuit Decision - ET Comes Home
by Carl Shusterman

Imagine, for a moment, that you have submitted an application for asylum. The Immigration Judge has denied your application, and you appealed this decision to the Board of Immigration Appeals (BIA). While your appeal is pending, you enter into a bona fide marriage to a citizen of the United States.

You and your spouse submit a visa petition and an application for permanent residence to your local INS office. An INS officer advises you that the INS has no jurisdiction to act on your application for adjustment of status unless you first withdraw your application for asylum. Acting on his advice, you write to the BIA and withdraw your appeal.

The INS accepts your application. However, while awaiting your interview, the INS sends you a letter to report for deportation. Then, a few days later, INS sends you a second letter requesting that you come into the office to be issued a work permit. You do so, and the permit is issued.

But what do you do about the deportation letter? It goes without saying that you should have retained an attorney to represent you. The advice that the INS officer gave you was clearly erroneous. Withdrawing your appeal simply reinstates the Judge's order that you leave the U.S. Any knowledgeable immigration attorney would have submitted a visa petition signed by your spouse to the INS. As soon as the INS approved the visa petition, the attorney would request that the BIA remand your case to allow the Judge to decide your application for adjustment of status.

But all of this is just "water under the bridge" at this point. Can't you submit a Motion to Reopen your case? Probably not. The law provides that unless the Judge or the BIA reopens your case on their own motion (sua sponte) or the INS agrees to submit a joint motion to reopen with you, you only have 90 days from the date of the final order in your case to ask that it be reopened.

This does not seem fair when your only mistake was relying on the advice of an INS officer. Should the courts follow the letter of the law "file your motion in 90 days or be deported"? Isn't there some notion that the law is supposed to be fair?

Fortunately, those federal courts which have ruled on this issue have held that fairness is written into the law by reason of the doctrine of "Equitable Tolling".

In a recent en banc (11 judge) decision by the U.S. Court of Appeals for the Ninth Circuit, the court, in a nearly unanimous decision, agreed. The Court held that the 90-day period for submitting a Motion to Reopen was "equitably tolled" because the person relied on the erroneous advice of an INS officer when he withdrew his appeal.

Significantly, the Court held that "We take as our starting place the presumption, read into 'every federal statute of limitation,' that filing deadlines are subject to equitable tolling." (Citations omitted.) The Court found that Congress, although aware of the doctrine of equitable tolling, did not intend to prohibit its application to the 90-day limitation on Motions to Reopen.

Following over 40 pages of detailed analysis, the Court reversed the BIA's denial of his Motion to Reopen, and remanded the case for the BIA to consider the merits of his motion to reopen.

The case, Socop-Gonzalez vs. INS, decided on December 5, was briefed by two very able attorneys, Robert Jobe and Hilary Han.

The government may seek review in the Supreme Court. However, if they do so, they will have to ask the Court to overturn the rule in two additional 9th Circuit cases and a 1st and 2nd Circuit case which also relied on the doctrine of equitable tolling in deportation cases.

Our law firm is currently in the preparation stage of two cases where the doctrine of equitable tolling will be invoked.

For links to deportation cases relying on doctrine of equitable tolling, see our "Deportation Defense" page at

and scroll down to "Equitable Tolling".

About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017