Svetlana Kuusk v. Eric Holder, Jr.
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: A099-082-944. [999218944]. [12-2367]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2367
SVETLANA KUUSK,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued:
September 17, 2013
Decided:
October 16, 2013
Before MOTZ and DIAZ, Circuit Judges, and John A. GIBNEY, Jr.,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Petition for review denied by published opinion.
Judge Motz
wrote the opinion, in which Judge Diaz and Judge Gibney joined.
ARGUED: Jonathan Scott Greene, GREENE LAW FIRM, LLC, Columbia,
Maryland, for Petitioner.
Nicole N. Murley, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON
BRIEF: Stuart F. Delery, Acting Assistant Attorney General,
William C. Peachey, Assistant Director, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
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DIANA GRIBBON MOTZ, Circuit Judge:
Svetlana
Kuusk,
an
Estonian-born
citizen
of
Russia,
petitions this court for review of an order by the Board of
Immigration
reopen
Appeals
removal
erroneously
(“BIA”)
denying
proceedings.
concluded
that
her
Kuusk
her
untimely
argues
circumstances
motion
that
did
not
equitable tolling of the statutory filing deadline.
the
to
BIA
warrant
We deny
Kuusk’s petition for review.
I.
On June 1, 2003, Kuusk entered the United States on a fourmonth J-1 visa.
She overstayed her visa.
On October 12, 2005,
she was served with a notice to appear before an immigration
judge (“IJ”).
Kuusk conceded her removability before the IJ,
but applied for asylum and withholding of removal pursuant to
8 U.S.C. § 1158 and § 1231(b)(3)(2006), respectively.
The IJ
denied both applications.
Kuusk timely appealed the IJ’s decision to the BIA. During
the
pendency
United
States.
“InfoPass”
Services
of
her
appeal,
On
appointment
(USCIS)
Kuusk
October
with
officer.
married
18,
a
2011,
U.S.
Kuusk
a
Kuusk
Customs
contends
citizen
and
that
of
the
attended
an
Immigration
this
officer
informed her that she “could file for a marriage-based green
card directly with the USCIS based on [her] marriage to a U.S.
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citizen . . . even though [her] case was currently on an asylum
appeal from the immigration court,” and that “if anything was
wrong with the filing, it would be rejected or [she] would be
notified.”
AR 24.
She further contends that she understood
these words to mean that she did not additionally need to pursue
her case before the BIA regarding her removal proceedings.
A
week
after
receiving
the
USCIS
officer’s
advice,
on
October 25, Kuusk informed her immigration attorney via e-mail
of her plan “to file papers now through marriage.”
AR 36.
Her
attorney responded the same day, warning her:
Remember that for immigrants in proceedings—getting a
marriage green card is complicated. . . .
Also,
please know that you need to file a motion to reopen
your case before the BIA within 90 days of . . . its
final decision. This deadline is firm, and if you do
not meet it, nothing can be done. Don’t mess around,
[and] be sure you do everything right.
Id.
On November 30, 2011, the BIA adopted and affirmed the IJ’s
denial of Kuusk’s application for asylum, and entered a final
order of removal.
Eleven days later, on December 11, Kuusk’s
attorney notified her of the denial via e-mail and warned her
that she “now ha[d] about 70 days to file a motion to reopen the
case based upon marriage to a US citizen,” and that if she
“wait[ed] beyond that period, [her] removal order w[ould] become
fixed and [she would] not be able to remain in the [United
States] legally.”
AR 37.
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Kuusk
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did
not
file
a
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motion
to
reopen
her
case
within
ninety days of the BIA’s final order (i.e., by February 28).
On
March 22, 2012, the USCIS denied Kuusk’s I-485 application for a
green card because she was subject to a deportation order.
Six weeks later, Kuusk filed an untimely motion to reopen
her removal proceedings to seek adjustment of her immigration
status.
Kuusk
principles
asked
and
the
disregard
BIA
her
to
apply
equitable
untimeliness
tolling
because
of
her
reliance on the USCIS officer’s assertedly incorrect advice, or
to exercise its authority to reopen her case sua sponte.
The
BIA
denied
Kuusk’s
motion.
Applying
the
equitable
tolling standard that we have applied in other contexts, the BIA
concluded
conduct
that
by
Kuusk
the
had
opposing
failed
party
to
show
that:
prevented
her
(1) wrongful
from
timely
asserting her claim; or (2) extraordinary circumstances beyond
her
control
made
it
statutory time limit.
330 (4th Cir. 2000).
We
review
the
impossible
for
her
to
comply
with
the
See Harris v. Hutchinson, 209 F.3d 325,
Kuusk noted a timely appeal. ∗
BIA’s
legal
conclusions
de
novo,
giving
appropriate deference to its interpretation of the Immigration
and
Nationality
Act
(INA)
in
accordance
∗
with
principles
of
The BIA also declined to exercise its discretionary
authority to reopen Kuusk’s case sua sponte.
Kuusk does not
appeal this portion of the BIA’s order.
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administrative law.
Cir. 2009).
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Hui Zheng v. Holder, 562 F.3d 647, 651 (4th
“We review denials of motions to reopen claims for
asylum and claims for withholding of [removal] under an abuse of
discretion standard.”
Id.
II.
The statutory filing deadline at issue here provides that a
motion to reopen removal proceedings “shall be filed within 90
days of the date of entry of a final administrative order of
removal.”
to
have
8 U.S.C. §
addressed
1229a(c)(7)(C)(i) (2006).
the
issue
has
held
that
Every circuit
this
provision
constitutes a statute of limitations to which the principles of
equitable tolling apply.
See Avila-Santoyo v. U.S. Att’y Gen.,
713 F.3d 1357, 1363-64 (11th Cir. 2013)(per curiam); HernandezMoran v. Gonzales, 408 F.3d 496, 499-500 (8th Cir. 2005); Borges
v. Gonzales, 402 F.3d 398, 406 (3d Cir. 2005); Harchenko v. INS,
379 F.3d 405, 410 (6th Cir. 2004); Riley v. INS, 310 F.3d 1253,
1258 (10th Cir. 2002); Socop-Gonzalez v. INS, 272 F.3d 1176,
1193 (9th Cir. 2001) (en banc); Iavorski v. U.S. INS, 232 F.3d
124, 130 (2d Cir. 2000).
Although this court has not previously
addressed the issue, we agree with our sister circuits and now
hold that § 1229a(c)(7)(C)(i) sets forth a limitations period
that can be equitably tolled.
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The
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Government
and
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Kuusk
also
agree
that
the
statute
contains a limitations period that can be equitably tolled; they
disagree, however, as to what standard must be met to establish
a basis for equitable tolling.
Kuusk argues that the BIA erred
in applying the standard we set forth in Harris, 209 F.3d at
330.
The Government contends that the BIA acted within its
discretion in applying the Harris standard.
In Harris, we addressed equitable tolling in the context of
a petition for a writ of habeas corpus.
tolling
to
be
proper
only
when
We held equitable
(1) “the
plaintiffs
were
prevented from asserting their claims by some kind of wrongful
conduct on the part of the defendant”; or (2) “extraordinary
circumstances beyond plaintiffs’ control made it impossible to
file
the
claims
omitted).
We
on
time.”
recognized
Id.
that
(internal
“any
quotation
invocation
of
mark
equity
to
relieve the strict application of a statute of limitations must
be guarded and infrequent, lest circumstances of individualized
hardship supplant the rules of clearly drafted statutes.”
Id.
To apply the doctrine generously “would loose the rule of law to
whims
about
claims
of
the
hardship,
accommodation.”
We
adequacy
of
and
excuses,
divergent
subjective
responses
notions
of
to
fair
Id.
concluded
in
Harris
that
this
rigorous
standard
was
necessary to ensure that “any resort to equity . . . be reserved
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for those rare instances where -- due to circumstances external
to the party’s own conduct -- it would be unconscionable to
enforce
the
limitation
period
injustice would result.”
Id.
against
the
party
and
gross
Subsequently, we have applied the
Harris standard in other contexts.
See Gayle v. United Parcel
Serv., Inc., 401 F.3d 222, 227 (4th Cir. 2005)(ERISA); Chao v.
Va. Dep’t of Transp., 291 F.3d 276, 283 (4th Cir. 2002) (FLSA).
Kuusk argues, however, that the BIA should not have applied
the Harris standard in the context of motions to reopen removal
proceedings,
but
instead
should
equitable tolling standard.
standards
articulated
by
have
adopted
a
more
lenient
She relies on the equitable tolling
other
circuits
in
cases
involving
untimely motions to reopen removal proceedings.
To
be
sure,
the
precise
wording
used
to
address
the
appropriateness of equitable tolling in these cases differs from
that in Harris.
See, e.g., Socop-Gonzalez, 272 F.3d at 1193
(applying equitable tolling when, “despite all due diligence,
[the party invoking equitable tolling] is unable to obtain vital
information bearing on the existence of the claim . . . [due to]
circumstances beyond the party’s control” (first alteration in
original));
Hernandez-Moran,
tolling
is
granted
beyond
the
filing.”
sparingly.
litigant’s
(alteration
408
F.3d
at
499-500
Extraordinary
control
omitted));
7
must
have
Borges,
402
(“Equitable
circumstances
prevented
F.3d
at
far
timely
406-07
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(explaining that petitioner must show both that he exercised due
diligence
and
that
extraordinary
circumstances,
like
fraud,
prevented him from timely asserting his claim).
But in none of the cases on which Kuusk relies, or in any
other, has a sister circuit fashioned a special, more lenient
equitable tolling standard for immigration proceedings.
Rather,
each of our sister circuits applies, in immigration cases, its
general
standard
for
equitable
tolling.
Most
importantly,
although differently worded, each of those standards, like that
in
Harris,
tolling
adheres
will
be
to
the
granted
general
“only
principle
sparingly,”
variety claim of excusable neglect.”
that
not
in
equitable
“a
garden
Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990).
Kuusk
has
provided
us
with
no
rationale
to
support
her
argument that we should fashion a special standard to apply in
immigration cases, and we see no reason to do so.
Thus, we hold
that the Harris standard applies to untimely motions to reopen
removal
proceedings.
The
BIA
did
not
err
in
applying
that
standard in this case.
III.
Alternatively,
Kuusk
maintains
that
the
BIA
incorrectly
applied the Harris standard to the facts of this case.
argument also fails.
8
This
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Kuusk contends that the assertedly erroneous instructions
she received from the USCIS officer prevented her from filing a
timely motion to reopen her immigration case.
Socop-Gonzalez,
tolling
to
be
in
which
warranted
the
Ninth
when
an
Circuit
INS
She relies on
held
equitable
gave
erroneous
officer
advice to a petitioner seeking a marriage-based adjustment of
status. 272 F.3d at 1193-96.
married
a
United
States
In that case, after the petitioner
citizen
during
the
pendency
of
his
asylum appeal, he asked an INS officer for advice on obtaining a
marriage-based adjustment of status.
Id. at 1181.
The officer
instructed him to “withdraw his asylum appeal and to file an
application for adjustment of status with the INS.”
Id.
When
the petitioner followed the officer’s advice, the withdrawal of
his asylum appeal immediately finalized his deportation order.
Id.
The Ninth Circuit pointed out that the advice of the INS
officer
was
incorrect:
“Instead
of
instructing
Socop
to
withdraw his asylum petition, the INS officer should have told
Socop to file a[] [green card] petition with the INS and wait
until
it
was
approved.”
Id.
Because
Socop
followed
the
officer’s incorrect instructions, he “unwittingly triggered his
own immediate deportation.”
Id. at 1182.
For this reason, the
court concluded that, due to the INS officer’s erroneous and
prejudicial advice, Socop was prevented “by circumstances beyond
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his
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control
discovering
determine
and
.
.
that
a
going
.
preserve his status.”
beyond
vital
motion
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‘excusable
information
to
reopen
he
neglect[]’
from
in
order
to
required
was
needed
in
order
to
Id. at 1194.
Socop-Gonzalez fundamentally differs from the case at hand.
Here,
the
USCIS
instructions.”
officer
did
not
provide
“incorrect
Rather, according to Kuusk’s own testimony, the
officer informed her that she should apply for a marriage-based
green card “directly with the USCIS based on [her] marriage to a
U.S. citizen . . . even though [her] case was currently on an
asylum appeal from the immigration court.”
correct:
USCIS”
AR 24.
This was
Kuusk did in fact need to apply “directly with the
for
a
marriage-based
green
card.
This
correct
instruction, however, did not excuse Kuusk from also pursuing
the other necessary course:
before the BIA.
USCIS
officer
a motion to reopen her proceedings
Unlike the INS officer in Socop-Gonzalez, the
here
did
not
instruct
Kuusk
to
abandon
her
application for asylum or to forego filing a motion to reopen
her case before the immigration court.
Moreover, in response to
Kuusk’s statement that she intended to file for a marriage-based
green card directly with the USCIS based on her marriage to a
United States citizen, Kuusk’s immigration attorney warned her
that she needed to “file a motion to reopen [her] case before
the BIA[.]”
Both before and after the BIA denied her appeal,
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Kuusk’s attorney cautioned her as to the necessity and immediacy
of filing this motion.
Kuusk
simply
misunderstood
the
accurate,
but
limited,
advice given by a USCIS officer and then ignored two warnings
from her attorney that she needed to file a motion to reopen her
immigration
case
within
misunderstandings,
“extraordinary
the
however
circumstances”
statutory
innocent,
beyond
time
do
the
sufficient to warrant equitable tolling.
limit.
not
Such
constitute
petitioner’s
control
Harris, 209 F.3d at
330; see also Gayle, 401 F.3d at 227 (“The law has always, and
necessarily, held people responsible for innocent mistakes.”).
We therefore hold that the BIA did not abuse its discretion in
determining that equitable tolling was not warranted here.
This result is unfortunate because it appears that a timely
motion to reopen Kuusk’s case would in all likelihood have led
to an adjustment of her immigration status, thereby enabling her
to remain legally in this country with her husband.
argument,
we
asked
the
Government
to
identify
any
At oral
steps
an
individual in Kuusk’s position might take to obtain relief from
the Government in order to avoid prolonged separation from her
family.
The Government indicated that Kuusk, through counsel,
could (1) ask the Department of Homeland Security to join her in
a
motion
favorable
to
reopen
exercise
her
of
case;
(2)
ask
prosecutorial
11
the
Government
discretion,
for
which,
a
if
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granted, would administratively close her case; or (3) ask the
Government to grant equitable relief in the form of deferred
action, in which case Kuusk would ask the Department not to
pursue removal.
Oral Argument at 33:30-35:00, Kuusk v. Holder,
12-2367, September 17, 2013.
Thus, although we cannot afford
Kuusk
“broad
equitable
relief,
the
discretion
exercised
by
immigration officials,” which remains “[a] principal feature of
the removal system,” Arizona v. United States, 132 S. Ct. 2492,
2499 (2012), might still be marshaled to provide Kuusk relief.
IV.
In sum, we hold that when a petitioner fails to meet the
statutory deadline to file a motion to reopen her immigration
case,
equitable
Government’s
filing
a
beyond
the
tolling
wrongful
timely
is
conduct
motion;
petitioner’s
or
appropriate
prevented
(2)
control
within the statutory deadline.
only
the
when
petitioner
extraordinary
made
it
(1)
the
from
circumstances
impossible
to
file
Because Kuusk failed to satisfy
either of these criteria, her petition for review is
DENIED.
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