Juana Hernandez v. Eric Holder, Jr.
457 F. App'x 487
6th Cir.2012Background
- Hernandez, a Salvadoran national, entered the U.S. in 2001 on a visitor visa and remained out of status after July 2001.
- TPS for El Salvador was designated March 9, 2001, with an initial registration window to Sept 9, 2002.
- Hernandez submitted a TPS application Aug 23, 2002; it was rejected for missing signature/fee and resubmitted Dec 30, 2002.
- An agency decision denied TPS as untimely; removal proceedings commenced in 2006.
- BIA adopted IJ’s denial and Hernandez appealed, challenging timeliness and equitable tolling.
- The court denies Hernandez’s petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the initial TPS filing | Hernandez filed Aug 23, 2002 within an extended window due to Hartman’s misaddressing. | Application was received Sept 27, 2002, after the Sept 9, 2002 deadline; incomplete at submission. | Hernandez failed to file a complete application by the deadline; untimely. |
| Equitable tolling of the filing deadline | INS delay and staff errors justified tolling; ineffective assistance argues tolling under Lozada. | Government delay or staff misaddressing does not warrant tolling; Lozada-based tolling not established. | Even assuming some error, no entitlement to equitable tolling shown. |
| Effect of alleged ineffective assistance of counsel or staff | Staff at El Centro de Familia provided ineffective assistance causing tolling. | No Lozada-compliant affidavits or evidence of accreditation or agreement; tolling not warranted. | Lozada-based tolling not established; no equitable tolling. |
| Regulatory/statutory alignment with TPS intent | Regulations contradict congressional/administrative intent to protect Salvadorans. | Deadline serves defined initial period; enforcement consistent with designations. | Regulations consistent with statutory design and TPS regime. |
Key Cases Cited
- Ceraj v. Mukasey, 511 F.3d 583 (6th Cir. 2007) (review of IJ/BIA decision; de novo questions of law; substantial evidence standard for facts)
- Gilaj v. Gonzales, 408 F.3d 275 (6th Cir. 2005) (agency determinations reviewed through IJ/BIA reasoning; final order review)