United States v. 2007-01-22 | 03-72277 | VALERIANO VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JOSE ALBERTO VALERIANO,
Petitioner, No. 03-72277
v.  Agency No.
ALBERTO R. GONZALES, Attorney A74-814-995
General,
Respondent. 
 JOSE ALBERTO VALERIANO,
Petitioner, No. 03-74754
v. Agency No.
 A74-814-995ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 20, 2005—Pasadena, California
Filed January 23, 2007
Before: Andrew J. Kleinfeld and Raymond C. Fisher,
Circuit Judges, and Milton I. Shadur,* Senior District Judge.
Opinion by Judge Kleinfeld
*The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
899

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COUNSEL
Victor D. Nieblas, Law Office of Victor D. Nieblas Pradis,
Los Angeles, California, for the petitioner.
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Cindy S. Ferrier (argued), Shelley R. Goad (briefed), Office
of Immigration Litigation, U.S. Department of Justice, Wash-
ington, D.C., for the respondent.
OPINION
KLEINFELD, Circuit Judge:
We decide that an alien who delays filing a motion to
reopen under 8 C.F.R. § 1003.2(c)(1) while awaiting the gov-
ernment’s response to his counsel’s request to join the motion
to reopen under 8 C.F.R. § 1003.2(c)(3)(iii) until the deadline
is past is not entitled to equitable tolling.
Facts
Valeriano is a 34-year-old native and citizen of Mexico
with three United States citizen children. He entered the
United States on June 25, 1988, and has resided here continu-
ously since that time. Nine years after Valeriano got here, in
February 1997, the INS served an Order to Show Cause why
he was not deportable. An Immigration Judge found him
deportable as charged and granted him voluntary departure in
1999. Valeriano appealed, but his appeal was filed six days
late, so the BIA deemed it untimely.
That is where our case begins. Valeriano filed a motion to
reconsider, accompanied by a declaration from a person who
states that she is a paralegal at Valeriano’s lawyer’s office.
She says that she sent Valeriano’s notice of appeal by FedEx
December 13, and that it was delivered December 14, which
would be timely. But as proof she attached documents that
prove the opposite of what she said. She submitted a letter
from FedEx saying that on December 14 it had indeed deliv-
ered a package she had shipped, but that the package had been
sent December 11, not December 13. This package could not
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have been Valeriano’s notice of appeal, because he did not
sign the notice of appeal until December 13, two days after
that FedEx package was sent. Also, Valeriano’s notice of
appeal came to the BIA in a postmarked envelope, not a
FedEx package, and the envelope is in the record. The post-
marks on the envelope showed that it had been mailed, and
could not have arrived in Washington by December 16 when
it was due.1 The BIA, taking note of these discrepancies,
denied the motion to reconsider.
The date of the denial of Valeriano’s motion for reconsider-
ation was May 22, 2000. Unfortunately the denial of the
motion to reconsider did not get to Valeriano. He had filled
out a BIA change of address form, but his lawyer had not
mailed it to the BIA, so the decision the BIA mailed to Valeri-
ano (his lawyer had prepared his papers as pro se filings)
came back to the BIA a few weeks later marked “return to
sender” by the post office. Valeriano did not know his case
was over until he sought to renew his work permit. He then
complained to his lawyer, who “reimbursed [him] $600 of the
money that [he] had paid her for the appeal.”
Valeriano retained new counsel in August 2001 after dis-
covering that he could not get his work permit renewed. His
new lawyer promptly followed the Lozada2 procedure to give
Valeriano’s previous lawyer a chance to explain what had
happened and to notify the state bar of the alleged miscon-
duct. Previous counsel responded to new counsel’s inquiry in
September. New counsel promptly filed a complaint with the
state bar.
1Administrative Record at 155. There are two postmarks on the enve-
lope. One says December 17, Los Angeles. The other says December 13
or 18 (the postal meter is not entirely legible), Los Angeles.
2Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) (“[B]efore allega-
tions of ineffective assistance of former counsel are presented to the
Board, former counsel must be informed of the allegations and allowed the
opportunity to respond.”).
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In November of 2001, Valeriano’s new lawyer wrote to the
Office of District Counsel at the INS, requesting that District
Counsel join in a motion to reopen pursuant to Lozada, and
arguing that Valeriano had a good case for suspension of
deportation. Valeriano’s lawyer mailed the letter with the
joint motion to reopen that he proposed to file if the District
Counsel agreed to join attached. It is the same motion he
eventually did file, except that the word “joint” has been
crossed out and District Counsel has not signed it. He
enclosed the evidence he proposed to submit so that district
counsel could evaluate it.
Thus, the motion to reopen was ready to file in November
of 2001. But counsel did not file it, hoping that the District
Counsel would agree to it and greatly increase the likelihood
of success. The District Counsel did not agree, but that is not
the immediate problem. The problem that controls this case is
that counsel for petitioner did not file his motion for eight
months.3 He was waiting for a response to his letter and tele-
phone calls, and did not get one until the following April, five
months later. That is when District Counsel turned down his
request to join in the motion to reopen.
Immediately after receiving District Counsel’s letter declin-
ing to join, in April 2002, counsel filed the motion to reopen
with the BIA pursuant to Lozada.4 The motion was the same
one he had sent to District Counsel the previous November,
with the word “joint” crossed out before “motion.” The BIA
denied it. The BIA reasoned that although the ninety day
deadline for motions to reopen could be equitably tolled until
the client learned of his previous attorney’s fraud, equitable
tolling required due diligence, which was absent. Because
Valeriano’s lawyer did not file the motion for eight months
3Part of the eight months was necessarily consumed by the Lozada pro-
cedure. Valeriano argues, and we assume without deciding, that the ninety
day period under 8 C.F.R. § 1003.2(c)(2) runs from retaining new counsel.
4Lozada, 19 I. & N. Dec. at 638-40.
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after Valeriano learned of his previous lawyer’s alleged fraud,
equitable tolling was denied.
Valeriano’s lawyer filed a motion to reconsider, arguing
that the reason for the five month delay was that he was wait-
ing for District Counsel to act. In addition to the letter in
November, he made “many calls,” and filed the motion as
soon as District Counsel advised him that it declined to join.
He also filed additional evidence to show hardship to Valeri-
ano’s U.S. citizen son if Valeriano was deported. The BIA
denied the motion to reconsider because it presented no error
of fact or law.
Valeriano, represented on appeal by a new lawyer, petitions
for review of both the denial of the motion to reopen and the
denial of the motion to reconsider.
Analysis
Motions to reopen are “discretionary” and “disfavored.”5
We review the BIA’s denial of motions to reopen and recon-
sider for abuse of discretion.6 We reverse the denial of a
motion to reopen only if it is “arbitrary, irrational, or contrary
to law.”7 Jurisdiction arises under former INA § 106(a)(1), 8
U.S.C. § 1105a(a)(1), as amended by IIRIRA § 309. Although
INA § 106 has been repealed by IIRIRA and replaced with a
new judicial review provision, that repeal was not effective
until April 1, 1997.8
[1] The regulation limits petitioners to one motion for
rehearing, but this numerical limit is excused “where a peti-
5INS v. Doherty, 502 U.S. 314, 323 (1992); Castillo-Villagra v. INS,
972 F.2d 1017, 1023 (9th Cir. 1992).
6Doherty, 502 U.S. at 323; Cano-Merida v. INS, 311 F.3d 960, 964 (9th
Cir. 2002).
7Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002).
8See IIRIRA §§ 306(c)(1), 309(a) and (c).
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tioner has been defrauded by an individual purporting to pro-
vide legal representation.”9 The BIA assumed for purposes of
decision (without so finding) that Valeriano was “defrauded”
by the lawyer who filed his appeal late. They treated the case
as though he had discovered his previous lawyer’s “fraud” on
the latest date the record could support, in August 2001, when
he signed a declaration describing what his previous lawyer
had done wrong and retained new counsel. Thus, the BIA did
not count against him either the numerical limitation, to a sin-
gle motion to reopen, or the time limitation, to ninety days
from when the BIA rejected his appeal. The BIA decided
against him because of the eight months between when he
retained new counsel and signed his declaration setting out
the ineffective assistance, and when he filed his motion to
reopen.
Thus, the question in this case is whether equitable tolling
is available for that eight months, from August 2001 to April
2002. A month or so of that time was necessarily consumed
by Lozada compliance. Even if we assume (we need not
decide) that Valeriano had ninety days to file the motion once
he retained new counsel and knew of previous counsel’s
“fraud,”10 then he needs five months of equitable tolling.
[2] We have held that the ninety day deadline for motions
to reopen is subject to equitable tolling.11 No affirmative mis-
conduct is required for equitable tolling (as opposed to equita-
ble estoppel) to apply.12 In our en banc decision in Socop-
Gonzalez, we held that when the lady at the INS “information
booth” gave the petitioner the wrong advice twice, and he fol-
lowed it to his detriment, there was no equitable estoppel
because “affirmative misconduct” requires a deliberate lie or
9Rodriguez-Lariz v. INS, 282 F.3d 1218, 1224 (9th Cir. 2002); see also
Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999).
10Rodriguez-Lariz, 282 F.3d at 1224.
11Socop-Gonzalez v. INS, 272 F.3d 1176, 1181 (9th Cir. 2001)(en banc).
12Id. at 1184-85.
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a pattern of false promises, not merely negligently providing
misinformation.13 For equitable tolling to apply, it is necessary
that “despite all due diligence, the party invoking equitable
tolling is unable to obtain vital information bearing on the
existence of the claim.”14 The party’s ignorance of the neces-
sary information must have been “caused by circumstances
beyond the party’s control.”15 It is not necessary that wrongful
conduct by a third party caused the inability to discover the
information, but merely that the information was unavailable
for reasons beyond the party’s control.16
[3] Valeriano claims that the unobtainable, vital “informa-
tion” was whether the District Counsel would agree to his
motion to reopen. The District Counsel did not mislead him,
like the person at the INS “information booth” in Socop-
Gonzalez. It just did not respond to his request. He has not
found a case where, on any similar facts, equitable tolling has
been applied, nor has the INS found a case where on similar
facts it was denied.
[4] The problem with Valeriano’s argument is that he did
not need this information to file his motion to reopen. Equita-
ble tolling is available only where an alien is diligent. We rec-
ognize that Valeriano’s counsel appears to have diligently
pursued the District Counsel’s agreement to join the motion
to reopen, and we assume for purposes of decision that with
agreement, success on the motion to reopen was highly proba-
ble, without it, highly improbable. However, diligence in
attempting to obtain nonvital information or acquiescence is
not “diligence” within the meaning of our equitable tolling
jurisprudence. A contrary rule would expand “information” to
embrace responses to proposed stipulations of opposing coun-
sel, an unsound position. It would also require the District
13Id.
14Id. at 1193 (internal citations omitted).
15Id.; see also Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001).
16Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001)(en banc).
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Counsel to answer its mail and call people back. That is desir-
able. But were we to make a rule that times do not run while
the District Counsel is not responding, the immigration and
deportation process would be even more clogged than it is, or
the District Counsel would simply instruct its secretaries to
generate “just say no” form letters and telephone responses
immediately. Had the District Counsel told Valeriano’s law-
yer “don’t do anything yet, we may agree, hold off,” then the
case would be more like Socop-Gonzalez, and equitable toll-
ing might be justified. But the INS did not do that, or any-
thing else to justify Valeriano’s delay in filing his motion.
[5] Valeriano’s counsel could have timely filed his motion
with the BIA while his joinder request to the District Counsel
was still pending — and even told the BIA that the District
Counsel had not responded. Perhaps the District Counsel
would have eventually filed notice of its agreement (or per-
haps not). If the BIA had not yet ruled on the original, solo
motion to reopen, Valeriano could have sought leave to
amend the motion when and if the District Counsel agreed to
join.17 Even if the BIA had denied Valeriano’s motion before
the District Counsel had responded to Valeriano’s counsel’s
request to join the motion, the District Counsel’s eventual
agreement — had it come — would have revived Valeriano’s
ability to file a motion to reopen. Section 1003.2(c)(3)(iii)
clearly states that a jointly filed motion is exempt from the
time and numerical limitations on the BIA’s jurisdiction to
entertain such a motion. Thus, Valeriano’s counsel’s decision
17Petitioner argues that § 1003.2(c)(3)(iii) requires a motion be filed
jointly in the first instance in order to qualify for that section’s exemp-
tions, but nothing in the regulations appears to preclude amending a
motion to reflect a newly obtained agreement to join an existing motion
to reopen. Moreover, even were petitioner’s interpretation of
§ 1003.2(c)(3)(iii) correct, he simply could have filed a new motion once
he had obtained the District Counsel’s agreement, as explained in text.
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to delay filing a motion to reopen until he received the Dis-
trict Counsel’s long-awaited response was tactical.18
The District Counsel’s long response time does, of course,
have the potential to threaten the meaningful exercise of the
joint filing option extended in § 1003.2(c)(3)(iii), particularly
if the BIA should deny the motion before the District Counsel
has decided whether or not to file jointly. Lawyers and agen-
cies can impose real hardship by refusing to respond to tele-
phone calls and letters. Such refusal can be an unfair tactic.
At oral argument, petitioner’s counsel contended that if the
BIA denied a solo motion before the District Counsel
responded to the motion to join, and there is a “third or fourth
motion to reopen,” then “it becomes extremely difficult . . .
to get a joint stipulation from the government.” Although we
are troubled by this possibility, we are unable to speculate on
this record that the District Counsel would in fact ignore or
summarily deny requests to file jointly in compelling cases,
even after the BIA has denied the solo motion. Moreover, the
BIA is not powerless to forestall the development of such
troubling situations. If, when filing a timely motion to reopen,
an alien advises the BIA of a pending request with the District
Counsel to file jointly, the BIA could stay its decision until
the District Counsel responds to the request.
[6] Because we see no unavoidable conflict between simul-
taneously filing a motion to reopen under 8 C.F.R.
§ 1003.2(c)(1) and a request to file jointly under 8 C.F.R.
§ 1003.2(c)(3)(iii), we hold that the petitioner’s counsel did
18The petitioner does not argue (and we express no opinion as to
whether) his second counsel’s “failure to file necessary papers in immigra-
tion proceedings” due to an erroneous belief that he could wait to file the
motion until he had received the District Counsel’s response “constitute[s]
ineffective assistance of counsel,” Iturribarria v. INS, 321 F.3d 889, 900
(9th Cir. 2003), and therefore a denial of due process under the Fifth
Amendment because “the proceeding was so fundamentally unfair that the
alien was prevented from reasonably presenting his case.” Lopez v. INS,
775 F.2d 1015, 1017 (9th Cir. 1985).
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not act diligently by delaying filing until he had received the
District Counsel’s response to his request, and thus the peti-
tioner is not entitled to equitable tolling of the filing deadline.
PETITION DENIED.
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