Equitable Tolling of MTR Filing Deadline
The procedural history, facts of record, holding and rationale in Tomasa Yamileth Masin-Ventura v. Garland (July 21, 2022) No. 21-60610 are as follows:
Case History
An Immigration Judge ordered the Petitioner removed in absentia (i.e. an order issued by an Immigration Judge in the absence of the individual whom the federal government is seeking to remove, deport or exclude from the United States).
The Petitioner filed a motion to reopen removal proceedings.
The Immigration Judge denied the Petitioner’s motion to reopen.
The Petitioner appealed the denial of her motion to reopen to the Board of Immigration Appeals (“BIA”).
The BIA affirmed the denial of the Petitioner’s motion to reopen.
The Petitioner filed a petition for review of the decisions of the Immigration Judge and the BIA.
Facts
- The Petitioner is a native and citizen of El Salvador, who was ordered to be removed from the United States in absentia on June 23, 2006.
- On August 26, 2019, the Petitioner filed a motion to reopen her removal proceedings and rescind the in absentia removal order.
- In support of her motion to reopen, the Petitioner claimed that she had been “forced into an abusive marriage where her free will was dominated by her assailant” and her assailant had prevented her from obtaining information about her immigration status and her 2006 removal proceedings.
- The Immigration Judge denied the Petitioner’s motion to reopen.
- The BIA affirmed the Immigration Judge’s denial of the Petitioner’s motion to reopen.
- In particular, the BIA acknowledged the Petitioner’s claim that her abusive ex-partner had prevented her from pursuing her immigration case, but agreed with the Immigration Judge that she had not pursued her rights with reasonable diligence.
- The Petitioner filed a petition for review of the decisions of the Immigration Judge and the BIA.
Held
Petition for Review DENIED
Rationale
The Petitioner asserted that, because she had been “forced into an abusive marriage where her free will was dominated by her assailant” and her assailant had prevented her from obtaining information about her immigration status and her 2006 removal proceedings, the BIA erred in finding that she did not pursue her rights diligently.
The Fifth Circuit Court of Appeal reasoned as follows:
- Denials of a motions to reopen are reviewed under a highly deferential abuse-of-discretion standard. Barrios-Cantarero v. Holder, 772 F.3d 1019, at 1021 (5th Cir. 2014).
- Factual findings will not be disturbed unless the evidence compels a contrary conclusion. Orellana Monson v. Holder, 685 F.3d 511, at 517-18 (5th Cir. 2012).
- As the Immigration Judge noted, the Petitioner did not state when her abusive relationship ended, nor did she identify when she learned of the in-absentia removal order or what steps she took following that discovery. See Flores Moreno v. Barr, 971 F.3d 541, at 545 (5th Cir. 2020) (upholding the BIA’s denial of equitable tolling where there was a “lack of meaningful evidence regarding the steps [petitioner] took to preserve his rights” over a period of three years), cert. denied sub nom. Flores-Moreno v. Rosen, 141 S. Ct. 1238 (2021).
- Accepting for the sake of argument that her abusive partner prevented her from participating in the 2006 proceedings or seeking that they be reopened and that she had been traumatized and unable to seek legal help for some time after escaping the abuse, the Petitioner admits that she obtained legal representation more than two years before filing her motion to reopen the removal proceedings.
- Furthermore, the Petitioner and her counsel were aware of her 2006 in absentia proceedings as early as May 28, 2017 and there is no explanation for the subsequent two-year delay in filing her motion to reopen.
- Therefore, the BIA’s conclusion that the Petitioner failed to act with reasonable diligence in pursuing her rights cannot be characterized as an abuse of discretion.
Commentary
A motion to reopen "shall be filed within 90 days of the date of entry of a final administrative order of removal." See section 240(c)(7)(C)(i) of the Act.
A practical mechanic to remember about motions to reopen and motions to reconsider, especially for procrastinators, that is not discussed in Tomasa Yamileth Masin-Ventura v. Garland (July 21, 2022) No. 21-60610 is how deadlines are calculated:
[T]he day the Immigration Judge renders an oral decision or mails a written decision counts as “day 0.” The following day counts as “day 1.” Statutory and regulatory deadlines are calculated using calendar days. Therefore, Saturdays, Sundays, and legal holidays are counted. If, however, a statutory or regulatory deadline falls on a Saturday, Sunday, or legal holiday, the deadline is construed to fall on the next business day.
See section 3.1(c)(ii)(D) of the Immigration Court Practice manual.
The Fifth Circuit Court of Appeal makes clear in Tomasa Yamileth Masin-Ventura that equitable tolling (i.e. extension) of the filing deadline for motions to reopen is not a free-for-all.
The Fifth Circuit Court of Appeal reviews denials of motions to reopen “under a highly deferential abuse-of-discretion standard.” Fuentes-Pena v. Barr, 917 F.3d 827, at 829 (5th Cir. 2019). Specifically, a discretionary BIA decision relating to a motion to reopen will not be disturbed “so long as it is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Yu Zhao v. Gonzales, 404 F.3d 295, at 304 (5th Cir. 2005).
It seems likely that even an artless or inappropriate administrative decision might survive abuse-of-discretion review.
The Fifth Circuit Court of Appeal has previously acknowledged that in some circumstances equitable tolling may be appropriate. An alien is entitled to equitable tolling of a statute of limitations only if:
- He has been pursuing his rights diligently; and
- some extraordinary circumstance has stood in his way and prevented timely filing. See Lugo-Resendez v. Lynch, 831 F.3d 337, at 344 (5th Cir. 2016).
In my experience, many late motions to reopen lie wrecked beneath the stormy seas of litigation after shattering on the rocks of the requirement to exercise reasonable diligence.
Immigration law is all about people. It is easy to become distracted and preoccupied with the obvious and unsettling impact of an extraordinary circumstance. Immigration practitioners, however, must never depart from the mental discipline necessary to a lawyer’s function. Human tragedy, trauma and hardship will sometimes characterize an extraordinary circumstance. Immigration practitioners must maintain composure and remain objective enough to assess and determine what evidence can be adduced to establish how an extraordinary circumstance prevented or interfered with the exercise of reasonable diligence or obscured the ordinary earmarks of reasonable diligence. For example, the Petitioner in Tomasa Yamileth Masin-Ventura v. Garland might have been suffering from post-traumatic stress or debilitating depression in a way that interfered with her ability to function or cooperate with her attorney. In other words, the two-year delay needed to be explained in a way that is consistent with the legal requirement to prove reasonable diligence. In Tomasa Yamileth Masin-Ventura v. Garland, no explanation was provided in the record under review.
Solely identifying an extraordinary circumstance without explaining how such extraordinary circumstance stood in the way of timely filing a motion to reopen is fatal, as a matter of law, to the motion to reopen. After 19 years of service as an Immigration Judge, I can categorically verify that failing to explain how an extraordinary circumstance interfered with the timely filing of a motion to reopen is a common oversight.
On the bright side, the application of equitable tolling might be applicable to the filing deadline for BIA appeals. In Jose Santos Boch-Saban v. Garland (April 8, 2022) No. 20-60540, the Fifth Circuit Court of Appeal determined that the thirty-day deadline for filing an appeal with the BIA under 8 C.F.R. § 1003.38 is non-jurisdictional and subject to equitable tolling.
The acknowledgement that equitable tolling of the 30-day time limit mandated in 8 C.F.R. § 1003.38(b) for filing an appeal with the BIA might be applicable, at least opens the door to consideration of extraordinary circumstances accompanied by reasonable diligence on the part of a litigant in pursuit of an appeal.
Practitioners, however, should keep in mind that discretionary decisions of the BIA not to consider an appeal, even if it has jurisdiction to do so, will be reviewed by the Fifth Circuit Court of Appeal with great deference. Therefore, application of the art of persuasion at the administrative level could determine the outcome of the proceedings.