Luna v. Holder
2011 U.S. App. LEXIS 19232
| 9th Cir. | 2011Background
- Tapia Luna, a Mexican native, was admitted to the U.S. as a permanent resident in 1990 and pleaded guilty in 1993 to receiving stolen property, a crime of moral turpitude.
- In 2000, Tapia was placed in removal proceedings for those offenses and was ordered removed after an IJ found him removable; he did not seek relief and allegedly departed the U.S., though his departure was witnessed.
- Tapia reentered the U.S. illegally and, in 2007, filed a motion to reopen arguing due process deficiencies in 2000 and seeking §212(c) relief, despite missing the 2005 deadline to file a special motion to reopen.
- Tapia asserted eligibility for §212(c) relief in 2000 because of seven years of unrelinquished domicile and lack of an aggravated felony, and claimed the IJ should have advised him of relief; he sought equitable tolling of the deadline.
- The EOIR and BIA treated Tapia's request as a motion to reopen under §1003.44, but both found him ineligible and that the deadline could not be tolled; Tapia appealed to the Ninth Circuit.
- The Ninth Circuit upheld the regulation §1003.44 as constitutionally sound and declined to toll the deadline absent due diligence, affirming denial of relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of §1003.44 deadline | Tapia argues the deadline is unconstitutional and violated notice requirements | Government asserts §1003.44 is a proper agency rule within its authority and provides due notice | Constitutional and proper agency rule; notice presumed adequate |
| Equitable tolling based on IJ's failure to advise | Tapia contends due process requires tolling for the 2005 deadline due to IJ's failure to inform him of §212(c) relief | Government maintains tolling not warranted absent due diligence and misinformation | No tolling; failure to file timely not excused by IJ's alleged failure to inform |
| Due diligence for tolling under Iturribarria/Socop-Gonzalez | Tapia alleges he learned of relief rights within 90 days of filing and diligently pursued reopening | Tapia did not file within 90 days of learning and failed to show due diligence | Failed to show due diligence; tolling denied |
| Application of §212(c) relief availability history to §1003.44 | Tapia relies on St. Cyr to argue continued availability of §212(c) relief for pre-IIRIRA pled guilty | Defendants argue the deadline and §1003.44 apply regardless of historical availability; no due process violation | §1003.44 correctly channels relief and deadline; no tolling based on historical availability |
Key Cases Cited
- St. Cyr v. INS, 533 U.S. 289 (Supreme Court 2001) (recognizes continued availability of §212(c) relief for certain pre-IIRIRA plea cases)
- Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003) (abuse of discretion standard for BIA denials of motions to reopen; equitable tolling considerations)
- Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) (equitable tolling when due information is unobtainable with due diligence)
- Singh v. Gonzales, 491 F.3d 1090 (9th Cir. 2007) (tolling requires due diligence in discovering the information bearing on the claim)
- Johnson v. Gonzales, 478 F.3d 795 (7th Cir. 2007) (agency rulemaking deadlines are permissible under reasonable authority)
- United States v. Clark, 435 F.3d 1100 (9th Cir. 2006) (ignorance of the law not a defense where notice was constitutionally sufficient)