629 F. App'x 776
9th Cir.2015Background
- Jose and Antonia Munoz retained Carlos Lewis and J&N Enterprises, a notario immigration consultant, to handle their cancellation-of-removal proceedings and appeal to the BIA.
- Lewis had previously provided an attorney for two IJ hearings, so the Munozes reasonably believed attorneys would handle their appeal.
- After the IJ denied relief on October 28, 2004, Munozes paid Lewis $1,300 to file a BIA appeal; Lewis (a non-attorney) filed an untimely, unsigned-by-attorney notice of appeal on January 10, 2005.
- Lewis misled the Munozes about the status and reasons for the late filing, did not inform them when the BIA denied the appeal or a motion to reconsider, and sent occasional unexplained documents to sign.
- The Munozes only learned of the full posture in late 2008, retained new counsel, and the new counsel filed a motion to reopen with the BIA; the BIA denied the motion as untimely and refused equitable tolling.
- The Ninth Circuit granted the petition, holding the BIA abused its discretion by refusing equitable tolling for fraud by a non-attorney notario.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the untimely motion to reopen is subject to equitable tolling | Munoz: fraudulent conduct by non-attorney Lewis prevented timely filing; tolling is warranted | BIA: Munozes knew Lewis was not an attorney and are not entitled to tolling | Court: Equitable tolling applies because Lewis’s fraudulent practices reasonably misled Munozes and caused delay |
| Whether reliance on a non-attorney can support ineffective-assistance claim | Munoz: equitable tolling may be based on constructive ineffective assistance/fraud by non-attorney | BIA: ineffective-assistance theory inapplicable because Lewis is not an attorney | Court: Rejects ineffective-assistance label but recognizes fraud by non-attorney as proper ground for tolling |
| Whether BIA abused its discretion in denying motion to reopen | Munoz: BIA abused discretion by refusing tolling given facts of deception | BIA: denial was proper under rules and precedent | Court: BIA abused its discretion; remanded for further proceedings |
| Timeliness of appeals to Ninth Circuit and related jurisdictional issues | Munoz: late filings caused by Lewis’s fraud impeded appeals | Government: procedural default/untimeliness bars review of direct BIA denial | Court: Ninth Circuit lacked jurisdiction over the direct untimely appeal to BIA, but petition challenging denial of reopening was granted due to equitable tolling errors |
Key Cases Cited
- Varela v. INS, 204 F.3d 1237 (9th Cir.) (equitable tolling appropriate where petitioner was defrauded by a person purporting to provide legal representation)
- Perez v. Mukasey, 516 F.3d 770 (9th Cir.) (standard of review for BIA motion-to-reopen rulings is abuse of discretion)
- Lopez v. INS, 184 F.3d 1097 (9th Cir.) (recognized tolling where notary posed as attorney and was late filing)
- Hernandez v. Mukasey, 524 F.3d 1014 (9th Cir.) (reliance on advice of non-attorney cannot support ineffective-assistance claim)
- Rodriguez-Lariz v. INS, 282 F.3d 1218 (9th Cir.) (equitable tolling warranted where petitioner knowingly relied on a non-attorney who purported to coordinate legal services)
- Fajardo v. INS, 300 F.3d 1018 (9th Cir.) (misconduct/ineffective-assistance arguments can be construed as fraud claims for equitable relief)