Sarmiento v. Holder
680 F.3d 799
| 7th Cir. | 2012Background
- Sarmientos are Philippine citizens in removal proceedings following failed adjustment applications.
- Leonida sought nursing-credential certification and 8 U.S.C. §1182(a)(5)(C) grounds; Romeo sought status as Leonida’s spouse.
- IJ denied adjustment and ordered removal; Board dismissed their appeal.
- Sarmientos moved for reconsideration; Board denied in Dec. 2010.
- Nine months later (within 90 days of reconsideration denial) they moved to reopen with new evidence; Board denied as untimely, placing focus on the 90-day clock from the initial dismissal.
- They petition for review challenging whether the 90-day deadline to reopen runs from the initial Board dismissal or from the reconsideration denial, and whether equitable tolling applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the 90-day reopen period start? | Sarmientos: tolls from denial of reconsideration; can reopen within 90 days of that final order. | Board: 90 days run from initial dismissal of the IJ removal order; reconsideration denial does not extend it. | Board’s interpretation reasonable; 90 days start from the initial dismissal. |
| What constitutes a final order for §1229a(c)(7)(C)(i)? | A final removal order includes the denial of reconsideration later in time. | Final order is the specific dismissal of the IJ removal order; reconsideration denial does not extend the clock. | Final order for reopening purposes is the Board’s dismissal of the IJ’s removal order. |
| Does Chevron deference support the Board’s timing rule? | Chevron should defer to petitioners’ interpretation. | Regulation reasonable; Khan relied upon Board precedent. | Yes, the Board’s timing rule is reasonable under Chevron deference. |
| Can equitable tolling be raised on appeal after not exhausted administratively? | Equitable tolling should be available based on fairness. | Issue not exhausted; not raised before the Board. | Equitable tolling cannot be raised on appeal due to failure to exhaust." |
Key Cases Cited
- Stone v. INS, 514 U.S. 386 (1995) (removal orders and tolling do not extend review deadlines)
- Nocon v. INS, 789 F.2d 1028 (3d Cir. 1986) (time to petition for review pegged to the specific order)
- Muratoski v. Holder, 622 F.3d 824 (7th Cir. 2010) (petition deadline tied to underlying order to review)
- Youkhana v. Gonzales, 460 F.3d 927 (7th Cir. 2006) (time to review anchored to specific order)
- Asere v. Gonzales, 439 F.3d 378 (7th Cir. 2006) (deadline rules for review of removal orders)
- Vega v. Holder, 611 F.3d 1168 (9th Cir.) (board interpretation of 90-day reopening upheld)
- William v. INS, 217 F.3d 340 (5th Cir. 2000) (reopening deadline aligned with challenged order)
- Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008) (finality of removal orders; interpretation guidance)