Gazmend AJAZI, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
No. 06-3003.
United States Court of Appeals, Sixth Circuit.
Feb. 2, 2007.
Even if Standex could satisfy the third element of tortious interference under Michigan law, it cannot satisfy the fourth: damages. In an effort to show that it presented sufficient proof of actual damages, Urban points out that “Falzon[e], Urban‘s former employee, admitted that she had a good relationship with Urban and was not seeking other employment.” This is accurate, but beside the point. Even if we assume that Falzone would have remained an Urban sales rep for the rest of her work-life, absent Standex‘s blandishments, there is no reason to believe that Falzone‘s refusal to leave Urban would have caused Standex not to terminate the agreement. By terminating the agreement and using an employee to solicit RFQs, Standex saves on commissions regardless of whether Falzone or someone else is the employee doing the soliciting.
Urban also states that “Standex‘s own emails establish that Standex hired Falzon [sic, Falzone] prior to its termination of Urban, not ‘shortly after’ as Standex claimed below.” This may be true, but it does not help Urban show a genuine issue as to actual damages suffered from the alleged tortious interference.
Urban may be speculating that Standex would not have terminated its agreement with Urban until and unless it was able to hire Falzone. Even if that were true, it does not mean that either half of that process was legally actionable: Urban has not demonstrated that Standex acted tortiously in convincing at-will employee Falzone to “jump ship” (this count), or in terminating the agreement once it had secured Falzone‘s services as its own employee (count one, part two). The district court properly granted summary judgment on the tortious-interference claim.
IX.
Count four merely sought declaratory relief on counts two and three. Because it was proper to grant summary judgment to Standex on counts two and three, it was proper to do so on count four.
X.
For the foregoing reasons, we reverse summary judgment as to the breach-of-contract claim (count one, part one), but affirm summary judgment for Standex on Urban‘s other claims.
CLAY, Circuit Judge.
Petitioner, Gazmend Ajazi, petitions this Court for review of a final order of the Board of Immigration Appeals finding Petitioner subject to removal under Section
BACKGROUND
Petitioner, a citizen of Albania, entered the United States on July 15, 1999, without inspection and without a visa. On October 14, 1999, Petitioner applied for asylum, asserting a well-founded fear of persecution on account of his political affiliations and activity. The Immigration and Naturalization Service (INS) initiated removal proceedings under
Petitioner subsequently appeared before the Immigration Judge, Robert D. Newberry, on April 5, 2000 for his merits hearing. The Immigration Judge called Petitioner an “inherently incredible witness” and found that Petitioner failed to meet his burden of proof. (J.A. at 120) Ultimately, he denied Petitioner‘s application for asylum, and requests for withholding of removal under
Petitioner timely appealed to the Board of Immigration Appeals (BIA) on April 24, 2000. On appeal, Petitioner challenged the Immigration Judge‘s credibility determination, as well as his denial of Petition
Petitioner avers that he “often called Mr. Salley to check on the status” of his case after Salley filed the appeal. (J.A. at 13) He declares that when he reached Salley, Salley “always would tell [him] that [his] case is still pending and [that Salley would] notify [him] upon receipt of the decision.” (Id.) He further states that “recently” when he could no longer reach Salley, he called Salley‘s brother, Noel Saleh (“Saleh“), and found out that Salley “had been suspended from the practice of law.” (Id.) At that time,1 Petitioner requested his file. Petitioner avers that Saleh mailed his file on July 1, 2005, and that he received it on July 7, 2005. Additionally, he claims that he immediately contacted current counsel to set up an appointment to review the file, and subsequently met with counsel on July 12, 2005.
During that meeting, Petitioner purportedly learned of the BIA‘s November 2002 dismissal. Petitioner then notified Salley of his intention to file a grievance against him with the Michigan State Bar in a letter dated July 12, 2005.2 Although the record does not include a copy of Petitioner‘s grievance, it does reflect that the State of Michigan responded in a letter dated July 22, 2005. Therein, the State informed Petitioner that it had revoked Salley‘s license to practice law on June 18, 2005 and, accordingly, would not be investigating Petitioner‘s complaint.
Nearly three years after the BIA dismissed his appeal—on October 11, 2005—Petitioner filed a Motion to Reopen immigration proceedings. Therein, Petitioner sought adjustment on the basis that counsel was ineffective, and that equitable tolling rendered his appeal timely filed. The BIA denied Petitioner‘s Motion to Reopen on December 8, 2005, in a Per Curiam Order finding that Petitioner failed to demonstrate that he acted with the requisite due diligence to invoke “equitable tolling” of the period to file an appeal. Petitioner timely filed this appeal. On September 27, 2006, a panel of this Court denied Petitioner‘s Motion to Stay Removal.
DISCUSSION
THE BOARD OF IMMIGRATION APPEALS DID NOT ABUSE ITS DISCRETION IN FINDING PETITIONER‘S MOTION TO REOPEN WAS TIME-BARRED
A. Standard of Review
This Court reviews the BIA‘s denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Scorteanu v. INS, 339 F.3d 407, 411 (6th Cir. 2003). The Attorney General has “broad discretion” to either grant or deny motions to reopen. INS v. Rios-Pineda, 471 U.S. 444, 449, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985). Reviewing under an abuse of discretion standard, “this Court must decide whether the denial of Petitioner‘s motion to reopen deportation proceedings was made without a rational explanation, inexplicably departed from established policies,
B. Petitioner‘s Untimely Motion to Reopen
Petitioner argues that the BIA abused its discretion “by misapplying the statute and the precedent case law set by this court” to deny Petitioner‘s Motion to Reopen. (Pet.‘s Br. at 13) We do not agree. A motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.”
We evaluate Petitioner‘s claim with reference to the general law of equitable tolling in this Court, as well as the persuasive law of sister circuits applying equitable tolling to Motions to Reopen immigration proceedings. When faced with the question of whether to apply equitable tolling to a generally time-barred claim, we consider five factors:
(1) the petitioner‘s lack of notice of the filing requirement; (2) the petitioner‘s lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one‘s rights; (4) absence of prejudice to the respondent; and (5) the petitioner‘s reasonableness in remaining ignorant of the legal requirement for filing his claim.
Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001) (considering petition for habeas relief under
Additionally, where sister circuits have applied equitable tolling in the context of BIA appeals, they have required petitioners to act with due diligence to protect their rights and interests. Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001) (en banc) (applying a five-factor test similar to this Court‘s test in Dunlap); Iavorski, 232 F.3d at 134 (“[E]quitable tolling requires a party to pass with reasonable diligence through the period it seeks to have tolled.“) (emphasis added); Socop-Gonzalez, 272 F.3d at 1193 (equitable tolling applies “where despite all due diligence, [the party invoking equitable tolling] is unable to obtain vital information bearing on the existence of the claim“) (alteration in original) (internal quotations omitted). Even where applicable, courts “sparingly” invoke equitable tolling, Jobe, 238 F.3d at 100 (citing Irwin v. Dep‘t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)), and do so only where “the circumstances that cause a [party] to miss a filing deadline are out of his hands.” Id. (alteration in original). Thus, at a minimum, a petitioner seeking to resuscitate a time-barred immigration appeal must establish due diligence.
Petitioner argues the BIA misapplied the law “as to when the ‘due diligence’ is relevant,” and frames the inquiry with reference to the time after the petitioner becomes aware of final removal action. (Pet.‘s Br. at 17) This Court has focused its due diligence inquiry both on petitioner‘s conduct before learning the status of his appeal, see Hermiz, 86 Fed.Appx. at 45 (finding petitioner did not act with due diligence when he failed to “make any inquiries regarding the status of his appeal for several years“), and after learning of the need for appeal. Scorteanu, 339 F.3d at 414 (delay after actual notice was not excused, and petitioner was not diligent, where he mistakenly believed he had to locate former counsel and obtain an affidavit from him to establish ineffective assistance in support of a motion to reopen); Ormanci, 110 Fed.Appx. at 487-88 (petitioner not diligent in waiting a year after actual notice of deportation to retain new counsel to bring motion to reopen proceedings). Sister circuits have assessed petitioners’ conduct before learning of the need to appeal. See Socop-Gonzalez, 272 F.3d at 1194 (petitioner who took no action to appeal a removal order was nevertheless diligent as he had “no reason to believe that his deportation order had become effective“); Iavorski, 232 F.3d at 134 (considering whether the party “pass[ed] with reasonable diligence through the period it seeks to have tolled“); id. (finding petitioner failed to exhibit due diligence when he attempted to contact his attorney to check up on his appeal, could not contact the attorney, and eventually stopped trying to contact the attorney for a period of two years).
In light of the precedent of this and other circuits, the BIA did not abuse its discretion in denying Petitioner‘s Motion to Reopen as not timely filed, and in declining to equitably toll the filing period. Petitioner does not dispute that he filed his Motion to Reopen nearly three years after the Immigration Judge‘s order of removal became final. Nor does Petitioner dispute that established policies of the BIA require that Motions to Reopen be filed within 90 days of the final removal order. Instead, Petitioner claims the BIA, in finding that he did not act with the requisite due diligence, misapplied the law regarding equitable tolling.
To establish that he acted with due diligence, Petitioner attached an affidavit to his Motion to Reopen wherein he averred that he “often called Mr. Salley to check
That recently [he] was not able to get in touch with Mr. Salley, so [he] contacted [Salley‘s] brother, Noel Saleh, who told [him] that Patrick had been suspended from the practice of law. That [he] requested that a copy of [his] file be mailed to [him]. That [Saleh] mailed it to [him] on July 1, 2005. That [he] received the file by mail on July 7, 2005. That upon receipt [he] contacted ... [current counsel] for an appointment. That [he] met with [counsel] on July 12, 2005. That upon review of [his] file [counsel] notified [him] that [his] case was dismissed by the BIA on November 1, 2002.
(J.A. at 13) Petitioner ultimately filed the motion to reopen on October 11, 2005.
On the facts before it, the BIA did not abuse its discretion in declining to equitably toll the period. Petitioner‘s affidavit does not aver the dates and times that he contacted Salley, thereby leaving both the number and frequency of attempts to the imagination. In fact, it fails to set forth the date of Petitioner‘s last attempt to contact Salley, and the date of Petitioner‘s ultimate phone call to Salley‘s brother, Saleh, to determine Salley‘s whereabouts.4 Thus, the BIA could not know whether Petitioner more closely resembled the petitioner in Iavorski or in Socop-Gonzalez. If, as in Iavorski, Petitioner initially made several attempts to contact his attorney and then stopped trying for a period of years without a status update, then he too “should have known he had been the victim of ineffective assistance of counsel well before” he ultimately demanded his file. See Iavorski, 232 F.3d at 134. However, if, like the petitioner in Socop-Gonzalez, Petitioner had no reason to believe that his removal order had become effective and that his attorney deprived him of “vital information” notwithstanding frequent and repeated attempts over the period after removal became final, then perhaps Petitioner acted with diligence.5 See Socop-Gonzalez, 272 F.3d at 1193. Having no information as to the frequency and number of attempts Petitioner made to contact counsel, however, we cannot say that the BIA abused its discretion.
Further, we note that Petitioner filed his Motion to Reopen exactly ninety days after July 12, 2005, the date he allegedly learned his appeal had been denied.6 Petitioner received his file from Salley on July 7, 2005, and called to schedule an appointment with new counsel that same day. Assuming that Petitioner could not ascer
CONCLUSION
For the foregoing reasons, we AFFIRM the Board of Immigration Appeals’ decision and DENY the petition for relief.
Angela ESSENMACHER, Plaintiff-Appellant, v. ORKIN EXTERMINATING COMPANY, INCORPORATED, Defendant-Appellee.
No. 06-1578.
United States Court of Appeals, Sixth Circuit.
Feb. 6, 2007.