Svetlana Kuusk v. Eric Holder, Jr.
2013 U.S. App. LEXIS 20903
| 4th Cir. | 2013Background
- Kuusk, an Estonian-born Russian citizen, overstayed a J-1 visa and conceded removability; IJ denied asylum and withholding of removal.
- She timely appealed to the BIA; while appeal was pending she married a U.S. citizen and sought adjustment based on marriage.
- At an Oct. 18, 2011 USCIS InfoPass appointment, a USCIS officer told Kuusk she could apply for a marriage-based green card directly with USCIS despite her pending asylum appeal.
- Kuusk’s counsel repeatedly warned her she still needed to file a motion to reopen before the BIA within 90 days of the BIA’s final order; the BIA denied her appeal on Nov. 30, 2011.
- Kuusk did not file a motion to reopen within 90 days; USCIS denied her I-485 on Mar. 22, 2012 because of the removal order; she then filed an untimely motion to reopen seeking equitable tolling.
- The BIA denied the motion; Kuusk petitioned for review arguing the BIA misapplied equitable tolling and should have found tolling warranted due to USCIS advice.
Issues
| Issue | Kuusk's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether 8 U.S.C. § 1229a(c)(7)(C)(i) is subject to equitable tolling | Kuusk: limitations period should be tollable | Gov.: limitations period is tollable but strict standard applies | Court: § 1229a(c)(7)(C)(i) is a limitations period subject to equitable tolling |
| What standard governs equitable tolling for motions to reopen | Kuusk: more lenient, immigration-specific standard | Gov.: apply Fourth Circuit’s Harris equitable-tolling standard | Court: apply Harris standard (wrongful government conduct or extraordinary circumstances) |
| Whether USCIS officer’s advice warranted equitable tolling | Kuusk: relied on officer’s (allegedly) incorrect advice and thus was prevented from timely filing | Gov.: officer’s advice here was not incorrect and counsel warned Kuusk to file motion to reopen | Court: officer’s advice was correct in form and not equivalent to the misleading advice in Socop‑Gonzalez; counsel’s warnings negate equitable tolling |
| Whether BIA abused discretion in denying motion to reopen | Kuusk: BIA should have tolled or reopened sua sponte | Gov.: BIA acted within discretion applying Harris and denying tolling | Court: no abuse of discretion; petition denied |
Key Cases Cited
- Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000) (articulates the Fourth Circuit’s equitable-tolling standard: wrongful government conduct or extraordinary circumstances)
- Socop‑Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) (equitable tolling warranted where INS officer gave erroneous, prejudicial advice that triggered deportation)
- Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990) (equitable tolling is available but reserved for limited circumstances)
- Avila‑Santoyo v. U.S. Attorney General, 713 F.3d 1357 (11th Cir. 2013) (holds § 1229a(c)(7)(C)(i) is a limitations period subject to equitable tolling)
- Riley v. INS, 310 F.3d 1253 (10th Cir. 2002) (applies general equitable-tolling principles to motions to reopen)
- Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005) (requires due diligence plus extraordinary circumstances for tolling)