Oscar Socop-Gonzalez v. Immigration and Naturalization Service

thаt he who is notified partner a items of SOCOP-GONZALEZ, Petitioner, Oscar inves- a criminal

or she is nonpart- treated as not be tigation shall unless this section items under nership receives written AND partner such

and until IMMIGRATION SERVICE, of such from the Service notification NATURALIZATION Respondent, treatment. 301.6231(c)-5T. §Reg. Treas. No. 98-70782. by iso regulation reads the Phillips Appeals, Court of United States in the first sentence

lating the statement Ninth Circuit. (“treatment items partnership as of items interfere”) the rest of the ... will 7, 2000 Feb. Argued Submitted Hence, a criminal argued, it is paragraph. mandatory obli imposes a Filed March investigation Opinion partnership treatment. to end the gation En Banc Rehearing Granted but unconvinc argument ingenious The Sept. whole, vests regulation ing. Read as notify in the Commissioner Dec. Argued discretion and Submitted criminal that he or she is under partner Filed Dec. given, notice is investigation. Until such partnership remain items partnership required Hoyt given was not

items. and his sta partnership items

notice. remained unaffected.

tus as TMP fortiori, argument has no force

A here,

where, investigation the criminal part- on the

has not been shown bear

nership whose tax is issue. As a Discretion. Commissioner’s mandatory argument if the on the

fallback fails, argues regulation Phillips

force his discre-

that the Commissioner abused terminating Hoyt as TMP of

tion why It is not evident partnerships. knowledge belief or

the Commissioner’s imposed matter on the

Hoyt’s fraud one obligation to end his sta-

Commissioner partnerships at issue. No

tus the three of discretion has been shown.

abuse reasons, foregoing

For the the decision AFFIRMED.

of the Tax Court is Attorney Odgen,

David W. Assistant Division, General, Washington, D.C. Civil Mullane, Senior (argued), Hugh G. Counsel, Division, Wash- Litigation Civil (brief), respondent. ington, D.C. for the SCHROEDER, Judge, Chief Before: PREGERSON, REINHARDT, TASHIMA, O’SCANNLAIN, HAWKINS, WARDLAW, SILVERMAN, McKEOWN, PAEZ, BERZON, Judges. Circuit by Judge PREGERSON: Opinion by Judge Dissent O’SCANNLAIN PREGERSON, Judge: Circuit appealing Before to a circuit court, may an alien seek relief from a Immigration Ap decision of the Board of (“BIA”) by filing a motion to peals deportation proceedings.1 her his or 3.2(a). purpose § The of a motion C.F.R. present to is to new facts or evi may dence that entitle the alien to relief 240(c)(6)(B), § INA deportation. 1229a(c)(6)(B); § U.S.C. 8 C.F.R. 3.2(c)(1). § An a may alien use motion to challenge finding deporta- of reopen to itself, bility or to show that the alien is newly eligible deportation. for relief from Gomez, Consequences Nonap- Iris pearance: Interpreting New Section 2f2B Act, Nationality Immigration (1993).2 75, Diego 30 San L.Rev. 117-18 Jobe, Francisco, 1996, pro- In Department Robert B. San Califor- Justice nia, petitioner. regulations restricting for the an alien mulgated may lo demonstrate that the IJ or the BIA erred as 1. An alien seek relief from decision 240(c)(5)(C), § Immigration Judge by filing a matter of law or fact. INA a motion to 1229a(c)(5)(C); 3.2(b)(1) § 3.23(b)(3). U.S.C. 8 C.F.R. 8 C.F.R. (governing before the motions reconsider BIA); 3.23(b)(2) (governing 2. An alien also seek relief from deci- mo- 8 C.F.R. IJ). by filing of an IJ or the BIA a motion to to reconsider before the An alien sion tions thirty purpose of a to re- file a motion to reconsider within reconsider. motion must facts, days INA consider is not to raise new but rather of the IJ's or the BIA's decision. to one motion reopen, requiring 30, 1997, On March while asylum his motion to be within ninety days appeal filed to the BIA was pеnding, Socop 3.2(c)(2). BIA’s Haydee Burbano, decision. 8 C.F.R. In married Sandra a Unit- appeal, ed prior we reaffirm our States citizen. On holding April went ninety-day Westminster, that this INS office filing period California inquire about how to tolling. See Varela submit a petition (9th Cir.2000). immigrate based his mar- riage. The INS officer staffing the infor- also conclude pre- circumstances mation booth instructed Socop to withdraw sented the petitioner’s case warrant asylum appeal and to application file an equitable tolling. Accordingly, grant we adjustment of status with the INS. petition review, reverse denial Socop followed these instructions: of the motion to reopen, and remand very day, he sent a letter to the BIA BIA. withdrawing appeal. letter, In his he explained that he was withdrawing his ap- I. peal “got because he married to an Ameri- FACTS AND PROCEDURAL can citizen and [was] to file for going my HISTORY adjustment of [through] status marriage.” November A. Socop-Gon- Oscar April On Socop filed an immedi- (“Socop”), zalez a native and ate petition, citizen of relative an application for ad- Guatemala, justment status, entered the United States as a and an application for nonimmigrant employment He visitor. was authorized authorization with the INS. 26,1992, May remain until but remained Unfortunately, the INS officer prо beyond that date without authorization vided incorrect advice to Socop. When the 5, 1995, from the September INS. On So- BIA Socop’s received letter withdrawing cop an filed for application asylum and appeal, his it issued an May order dated withholding of deportation. On October 1997 returning the case Immigration 19,1995, the deportation pro- initiated INS Court without further action. This order ceedings against Socop by an issuing Or- constituted a final administrative decision der to Show that charged Cause him with case, asylum Socop’s which made So- overstaying his visa violation of cop’s April deportation order im 241(a)(2) § Immigration and Nation- effective. mediately of instructing Instead (“INA”), 1251(a)(2).3 ality § Act 8 U.S.C. Socop to asylum petition, withdraw his At hearing Immigration held before an INS officer should Socop have told to file (“IJ”), Judge Socop conceded that he was an relative petition immediate visa with deportable charged, requested as but asy- and INS wait until it approved. was lum, withholding of deportation, and alter- Assuming approved the INS peti his visa natively, voluntary departure. April On (it 7, 1998), tion fact did so on April 1996, the IJ denied all requested relief and Socop then should have filed a motion to Socop ordered deported. later, Six days remand) reopen (styled aas motion with Socop timely filed a appeal with the BIA. BIA, accompanied by completed ap Socop represented was attorney plication adjustment for of status and his deportation hearing, but ap- filed the approved petition. visa See 8 C.F.R. peal pro 3.2(c)(4) se. § (providing that motion to re- 240(c)(5)(B), 1229a(c)(5)(B);

§ § U.S.C. overstay provision 3. The since been reco- has 3.2(b)(2); 237(a)(l)(C)(i), 3.23(b)(1). § § C.F.R. dified at INA C.F.R. 8 U.S.C. 1227(a)(l)(C)(i). adjustment application his process before the pending appeal open while 12, 1997, after July days ten a motion to remand On deemed status. “may BIA be “Bag Bag- the Immi- Socop before sent proceedings further the INS 3.2(c)(1) (pro- letter, Judge”); 8 C.F.R. him a letter instruct- gration gage” sent reopen on basis of motion to viding that to receive his ing report him to to the INS deportation for relief eligibility new July card. On employment authorization appropriate by the accompanied be “must 14, 1997, lawyer with a Socop consulted supporting all for relief and application and filed a waiver of exclud- prepared who documentation”). ad- ability, supplement his presumably days Two la- justment petition. of status a motion to may grant BIA ter, picked up Socop went to INS a final deci it has rendered remand before card, authorization which employment his Yewondwosen, In re given in a case. sion July expiration had an date (1997). Therefore, 21 I. Dec. 1025 & N. approved been petition visa had followed the that he had not Concerned in his BIA rendered its decision before the status, adjust his proper procedure to grant the BIA could have asylum appeal, conflicting signals he was confused if BIA Even ed his motion to remand. INS, Socop returned to receiving from the in Socop’s final decision had rendered a August on office Westminster INS ap been petition his visa had case before the same spoke 1997. He INS still have had Socop still would proved, spoken on his officer with whom he had supported in which to file a ninety days visit, again and she told him that previous . See 8 C.F.R. motion status, adjust he needed to order to 3.2(c)(2); H-A- Interim Dec. In re BIA. asylum appeal with the withdraw his (BIA 1999) (holding WL wary of the INS By now deportation proceedings that alien whose lawyer’s advice. With a assis- officer’s reopen have closed still move to 11, 1997, tance, August moved adjust long petition visa status so the BIA to his case and to reinstate ninety days depor of final approved within Socop based his mo- asylum appeal. order). By following the INS offi tation ground tion to on the he relied howev appeal, cer’s advice to withdraw his on the incorrect advice of to his detriment er, triggered his own Socop unwittingly Socop urged the INS officer. also and, absent a suc deportation immediate sponte power BIA sua to to exercise its reopen, any to lost chance cessful motion 3.2(a) § reopen his case. See 8 C.F.R. adjust had to his status on might he have reopen BIA to cases on its (authorizing marriage. of his the basis motion). own 2, 1997, Socop a July On the INS sent instructing him “Bag Baggage” Socop’s and letter motion to re The BIA denied 11, August report deportation First, to for open grounds. on two it held that letter, Socop 1997. This which received on reopen untimely the motion to was because 7, 1997, alerted him the time July for first ninety days it within was filed attempt problem that there was Second, BIA BIA’s decision.4 held adjust to his status. if were Socop’s reopen that even motion to timely, the motion should be denied be

At the same time that the INS was approved did not submit an deport Socop, to it also started cause attempting aspect Socop's thirty days This held that motion BIA's decision. 4. The BIA also if reconsider, it appeal. were construed a motion to of the BIA’sdecision is not on as. untimely filed within because was not

1183 adjust petition application visa and an form and Immigrant Responsibility Act of (“IIRIRA”) ment of status at the time hе filed his because Socop was reopen. denying Socop’s motion to After placed deportation proceedings before reopen, (on motion to the BIA also declined 1, to April 19,1995), 1997 October and his sponte power reopen, exercise its sua final deportation order became effective finding Socop’s present case did not (on 30, 1997). after May October “exceptional circumstances.” See In re J- 309(a), (c)(1); § See IIRIRA Kalaw v. J- 21 I. & N. Dec. 1997 WL 434418 INS, Cir.1997). (1997) (establishing “exceptional circum jurisdiction We have to review the BIA’s sponte reopen stances” standard ‍‌​‌‌​​​‌​​‌​‌‌​‌‌​​‌‌‌​​‌​‌‌‌​​‌​‌​‌​‌‌‌‌‌​​‌​‌​‍sua refusal to reopen deportation proceedings ing). pursuant now-repealed INA 106(a), § 1105a(a), § 8 U.S.C. as amended

Socop timely appealed the BIA’s deci- by the judicial transitional governing rules appeal, Socop sion to this court. On ar- review, which are codified at IIRIRA BIA gues equitably should have 309(c)(4).5 Arrozal ninety-day filing period tolled the for mo- (9th Cir.1998) 431-32 (holding that reopen. Specifically, Socop argues tions to appeals jurisdiction court of has (when review May that the the BIA denial of motion underly- where returned Immigration case to the ing deportation Court) (when pursuant order issued until July received 241(a)(2)). INA letter) “Bag Baggage” should be time, during tolled because this despite reaching Before the merits of due diligence, he did not know that case, we must first address the INS’s erroneous advice of the INS officer had jurisdiction contention that lack we to con him wrong procedure caused to follow the sider Socop’s equitable tolling argument that, result, as a April because he failed to raise it before the deportation order had become effective. BIA. The INS is correct if Socop alternative, Socop argues failed to exhaust his administrative reme refusing BIA erred in to exercise its sua respect dies with to equitable tolling, we sponte power present cases that jurisdiction lack under the INA to consider “exceptional circumstances.” Because we 106(c), appeal. the issue on See INA hold that the BIA should equitably 1105a(c) 1996) (mandat (repealed U.S.C. ninety-day filing period, tolled the dowe exhaustion); ing Vargas Dept. v. U.S. question not reach the the BIA whether Naturalization, Immigration sponte should have exercised its sua power (9th Cir.1987) (“Failure 907-08 an appeal raise issue to the BIA constitutes a failure to exhaust remedies II. respect question deprives with to that and JURISDICTION jurisdiction this court of to hear the mat ter.”) (citations omitted).6 governed by This case is the transi We hold tional Illegal Immigration rules of the Re- even in though Socop specifically never rules; replaced statutory 5. IIRIRA old section the transitional these cases continue to 106, governing judicial deportation governed by § review of and be INA as amended orders, 106, § transitional exclusion INA 8 rules. See Avetova-Elisseva v. U.S.C. INS, 1192, (9th Cir.2000). 1105a, 213 1195 n. 4 governing judi- F.3d new section 242, orders, cial review of "removal” INA 8 1105a(c), 106(c), provision U.S.C. 1252. The review new INA 8 U.S.C. now re apply governed by pealed, deportation does not to cases that are states: "An order of 1184 begun to run.” See Garde already in his it has tolling” “equitable phrase

voked the (BAP IRS, 376, B.R. 382 9th nhire v. 220 BIA, sufficiently raised the he to the briefs Cir.1998), F.3d grounds, on other 209 re rev’d permit BIA to us to issue before Cir.2000). (9th tolling But while “fo appeal. on view the issue ignorance plaintiffs on the excusable cuses reply and a opening an Socop submitted and on lack of of the limitations BIA, a personal as well as brief defendant,” estoppel “fo prejudice to the documents, Socop In these declaration. of the defendant.” cuses on the actions background the factual forth in detail set 691, F.2d California, Naton v. Bank that he was Socop explained of this case. (9th Cir.1981); see also Lehman and that after deportation proceedings, (9th States, 154 F.3d 1015-17 United citizen, sought he marrying an American Cir.1998) thеories), (discussing both cert. adjust his on how advice from the INS denied, 1040, 119 S.Ct. 526 U.S. in- that he received explained status. He Williams, (1999); L.Ed.2d 500 Stitt v. from an INS officer—not correct advice Cir.1990) (“[E]quitable once, he should withdraw but twice'—that un plaintiff when the tolling applies for apply order asylum appeal his action, equita while aware of his cause of adjustment of status. detailed how who estoppel applies plaintiff when ble this advice imme- carefully he followed reasonably knows of his cause of action withdrawing asylum appeal his diately or on the defendant’s statements relies adjustment peti- of status filing then an suit.”). failing bring conduct should not be Socop argued tion. he on incorrect ad- relying penalized Equitable estoppel cannot serve officer. vice INS for relief in this case because as the basis have to show that the INS Socop’s inability, through Socop would These facts — in “affirmative miscon engaged due dili officer despite no fault of his own and him with incor April provided 1996 duct” when she gence, to discover that Mukherjee v. when rect advice. deportation order became effective omitted). (9th Cir.1986) (citation the BIA— appeal he withdrew his before “affirmative previously an defined support are those needed to precisely to mean a “deliberate lie” or tolling argument. Super misconduct” equitable States, promises.” Id. at 1009. pattern “a of false Cargo, mail Inc. v. United (9th Cir.1995). misinformation to an Unfortunately," Negligently providing definition, so reply nor his alien does not meet this So- Socop’s opening neither brief estoppel theory. ninety- cop prevail cannot on explicitly requested brief (holding at 1009 that there was no day motions to See id. Instead, equitably tolled. affirmative misconduct where consular reopen be petitioner the doctrine of officer failed to inform requested relief based on to, peti approved which is similar but visa was misinformed equitable estoppel, from, subject to a two- tolling. tioner that he was not distinct year residency requirement). equi

Both contrast, By equitable tolling a limi does estoppel “stop table can be used to continuing require to run after affirmative misconduct be tations incorporate 8 by any cause transitional rules ”[l]he shall not be reviewed court if alien 1105a(c)..." Hose U.S.C. v. 180 has not exhausted the administrative reme 992, Cir.1999). post-IIRI right available to him as of under the F.3d 996 dies requirement at immigration regulations....” RA exhaustion is codified INA laws and This 242(d), 1252(d). requirement applies be 8 U.S.C. exhaustion

1185 rather, half opposing party; argument “[a]ll of the had not properly been rаised by one need show is that the exercise of appeals, before the court of Supreme diligence proponent reasonable of toll Court “Quite nevertheless concluded: ing have discovered essential could not apart any question governmental bearing information on the claim.” Garde estoppel respecting assertion of the statute nhire, 382; 220 B.R. at also Bell v. see of limitations ... we consider that Fowler, (8th Cir.1996) 262, 99 F.3d n. 2 266 any was in event tolled (“Equitable tolling require any does not ... petitioners’ and that right bring defendant.”) part misconduct on the their suit was not foreclosed.” Id. at 494- (citation omitted). though Even Socop’s 95, 87 S.Ct. 1188. lawyer mistakenly invoked equitable estop- Second, penalize we decline to Socop for pel equitable instead of tolling as the basis lawyer’s failure to seize on equitable relief, for for the following reasons we hold tolling, opposed estoppel, as presenting is barred from theory the correct premise on which to tolling argument appeal. meritorious request for relief. Our court has observed First, Supreme Court itself has es- there “clearly some overlap” be that it appropriate tablished to decide a tween equitable tolling and estoppel, and tolling grounds, though case on even it wаs that the two can be difficult to distinguish. argued before and decided the court of Supermail, 1207; 68 F.3d at see also Beni appeals as an case. See Honda v. estoppel Rico, 54, tez-Pons v. Puerto 136 F.3d 62 Clark, 484, 1188, 386 U.S. 87 S.Ct. 18 (1st Cir.1998) (“Equitable estoppel has a (1967). Honda, L.Ed.2d 244 the Su- origin similar and effect as equitable toll preme Court observed as the “[b]oth doctrine.”). ing, although it ais distinct case was treated the lower courts and Moreover, Socop’s lawyer is not the first here, largely argued as it was the limita- to conflate the two concepts. Courts tions issue thought has been to turn on themselves often “use the ‘equitable terms whether the Government is estopped from tolling’ and ‘equitable estoppel’ inter asserting 60-day provided time bar changeably incorrectly.” or 4 Honda, CHARLES actions of this kind.” 386 at U.S. 486, ALAN WRIGHT & ARTHUR R. MIL 87 S.Ct. 1188. This statement accu- LER, rately FEDERAL appellate proceed- reflects the court PRACTICE AND (2d ings Although this case.7 Supp.2001) PROCEDURE 1056 ed. Katzenbach, 2-6, Kondo, 19,282 (Nos. 7. See Kondo v. 356 F.2d 351 356 F.2d 351 & (D.C.Cir.1966), 19,284). However, "[pjoints rev’d sub nom. Honda v. raised for the Clark, 484, reply 87 S.Ct. normally first time in a brief are not (1967). appellants' opening appeal.” L.Ed.2d 244 be considered on United States v. Haldeman, (1976) appeals brief before the (citing court of mentioned Fin only estoppel tolling. sky but did Corp., not mention Carbide Union & Carbon See, Kondo, (i), (7th Cir.1957), denied, e.g., Appellants Br. for cert. 356 U.S. (1967) 19,282 (Nos. 19,284) (1958)); F.2d 351 & 2 L.Ed.2d 1065 see Sciences, (phrasing question presented Academy as “whether also Herbert v. National (D.C.Cir.1992) (“This against ... estoppel is available Court, course, Trading generally the United States in suits under the refuses to enter Act,” Enemy mentioning arguments With The and not tain raised for the first time in an brief.”). equitable tolling). appellant’s reply Finally, majori The same is true for the appellee's answering ty opinion appeals, brief in that case. See of the court of like the Kondo, Appellee, appellant’s opening appellee’s Br. 356 F.2d 351 brief and the (Nos.19,282-19,284). brief, opening answering only estoppel Unlike their also discussed briefs, Kondo, appellants’ reply tolling. brief in Kondo did but did not See discuss tolling. Reply Appellants mention Br. for F.2d at 352-59. agency Stitt, an administrative at ment —that cases); see also (citing a full to resolve opportunity should regarding case law that (noting own errors be- controversy or correct its tolling is equitable and estoppel equitable been satis- judicial fore intervention —have and that the contradictory,” and “confused Id. at 648. fied here.” equita language court “used district the test “relevant estoppel” applied but ble BIA that the Similarly, we are satisfied Bell, 99 F.3d at 266 tolling”); equitable and addressed Socop’s in case considеred and “[e]quitable estoppel (noting n. 2 thorough- sufficient equitable tolling with concepts two distinct equitable tolling are the fear that our consider- dispel ness to use of the by inconsistent often blurred appeal this on will interfere ation of issue in which citing cases terminology,” autonomy. The BIA was agency with McAl concepts); courts have confused equitable considerations aware FDIC, 767 n. lister v. Socop favor because weighed Socop’s (“Several Cir.1996) courts, including the briefs, explic- them in his and he presented Dep’t Veter Court Irwin Supreme [v. itly equitable the BIA to exercise its urged 89, 111 Affairs, 498 U.S. S.Ct. ans motion to De- powers grant (1991)], have used the terms L.Ed.2d 435 the BIA held that the spite argument, this estoppel’ filing a motion to ‘equitable tolling’ ‘equitable exceptions to “certain interchangeably.”). here.” The BIA went on to applicable Socop that re- Finally, agree we with con- that even if motion were hold clarity which he raised gardless of the reconsider, “there is strued as motion tolling argument in his equitable exception no to the time bar” fact, briefs, did, the BIA address the such motions. equitable considerations question whether the limitations set forth should toll BIA had—and therefore INS, Sagermark In in 8 C.F.R. 3.2. to con advantage opportunity took of—the (9th Cir.1985), had to F.2d 645 we equitable considerаtions sider whether exhausted petitioner decide whether exception to the applying mandated it remedies where was his administrative “Where, §in time bars set forth 3.2. timely appealed unclear whether he here, prob was aware of the agency decision to the BIA. Id. at 648. We IJ’s lem, apply expertise, it did its where did, fact, BIA consid- discretion, observed it its it where did exercise decision—a fact er the merits of IJ’s decidedly unfair bizarre —and [would be] petitioner to conclude that the which led us petitioner us to refuse to review —for ” even if he had exhausted his remedies Singh-Bhathal v. that decision.... (9th Cir.1999) (Kozinski, BIA. timely appeal failed to We wrote, J., on or not the decision For all of these dissenting part). “[w]hether BIA, reasons, technically Socop the merits was before the conclude that exhausted we thoroughly enough respect the BIA remedies with toll addressed jurisdiction to con policy ing, that the relevant con- we have convince us appeal.8 require- the exhaustion sider this issue underlying cerns request- original panel, Socop argues Socop waived the his brief to the 8. The INS also ninety-day tolling argument ed that the court "toll'' the limita- because he failed theory. equitable estoppel original panel that heard tions on an to raise it before the conclude, however, Socop support an appeal. also cited facts that would case on equitable tolling argument. tolling argument For the reasons did raise the above, inarlfully. this was sufficient for original panel, albeit stated before the

H87 III. IV. DISCUSSION

STANDARD OF REVIEW Equitable A. Section 3.2 and Tolling review for an abuse of dis The INS uphill faces an battle con- cretion the BIA’s denial aof motion to vincing us that the filing period for mo- INS, Shaar v. 955 tions to reopen is not equita- amenable to (9th Cir.1998). We review de novo “the ble tolling. Agreement with the INS’s BIA’s determination of purely legal ques position require would us to overrule our tions, precedent, circuit’s including interpretation the BIA’s also create a Varela, circuit split. 204 F.3d at 1240 Immigration the Nationality Act.” Lo (ninety-day filing period for motions to INS, pez v. 1099 Cir. reopen may equitably be tolled); Iavorski 1999) (citation omitted). Deference to the INS, (2d 232 Cir.2000) F.3d INS’s interpretation of immigration ‍‌​‌‌​​​‌​​‌​‌‌​‌‌​​‌‌‌​​‌​‌‌‌​​‌​‌​‌​‌‌‌‌‌​​‌​‌​‍(same). only laws is appropriate if Congress’ intent Varela, we held that the ninety-day Chevron, U.S.A., is unclear. Inc. v. Natu period for filing motions to reopen estab Council, Inc., ral Resources Defense 3.2(c)(2) lished in § 8 C.F.R. was 837, 842, 81 L.Ed.2d tolling where petitioner (1984). court, “If a in employing tradi was defrauded by an individual purporting tional construction, tools of statutory as provide legal representation. Varela, certains that Congress had an intention on 204 Varela, F.3d at 1240. In deciding we issue, the precise question at that intention case, relied on an earlier Lopez, 184 F.3d is the law and given must be effect.” Id. at in which we equitably tolled a 9, 104 n. S.Ct. 2778. 180-day similar filing period for motions to

reopen that applies to aliens who have been deported in absentia.9 In holding raise the original issue before pan- certainly permitted, be if encouraged, el. correct, decide the on the case unraised grounds. Accordingly, because has Moreover, unlike the failure exhaust ad- unquestionably equitable tolling raised ar- respect ministrative remedies with to an is- gument court, before en banc we now sue, failure to raise an original issue before an decide the issue. appellate panel preclude does not an en banc panel’s jurisdiction over the issue. A court’s statutory provision Lopez issue in decision to a effectively rehear case en banc that, provided in cases where an alien was original three-judge means that the panel nev- absentia, deported in a motion to why er existed. original panel This is could be days "filed within 180 after [an] disposition may very not be cited the minute deportation order of if the aliеn demonstrates that a court votes to rehear case en banc. appear failure was because of The en origi- banc court does not review the exceptional Lopez, circumstances....” decision, panel nal nor does it overrule the provision F.3d at 1099. This was codified at Rather, original panel decision. the en banc 242B(c)(3)(A), § INA U.S.C. court hearing acts as if it were the case on 1252b(c)(3)(A), repealed has since been appeal for the first time. This makes sense 308(b)(6). IIRIRA Id. at 1099. "Con purpose because of en banc review is to gress replaced provision th[is] one that is any correct original panel may errors that the respects in all except identical that what for original panel committed. If the issues merly ‘deportation’ called referred now clearly opinion, erroneous and the case is 240(b)(5)(C)(i), to as 'removal.' See INA grounds called en banc on that would correct 1229a(b)(5)(C)(i).” codified at 8 U.S.C. opinion but which were not (1st raised before Jobe v. 99 n. 4 Cir. original panel, panel 2001) (en banc). the en banc would Co., R.R. v. N.Y. Cent. stances.” Burnett Lopez was sub filing deadline 1050, 424, 427, 13 in a 85 S.Ct. tolling, applied we 380 U.S. ject equitable to (1965); King v. Cali the rule stated see also manner L.Ed.2d 941 straightforward Cir.1986) (9th 910, in Court Holm 914-15 Supreme fornia, the 784 F.2d long ago 392, 397, Armbrecht, 66 in “de inquiry” 327 U.S. that thе “basic berg (stating v. (1946): the 582, 743 that tolling 90 L.Ed. should equitable S.Ct. whether ciding] “ read into doctrine ‘is tolling equitable tolling the statute is “whether apply” ” Lo of limitation.’ federal statute every will effectuate con certain situations Holmberg, (quoting F.3d at 1100 pez, ....”) Burnett, 184 (citing purpose gressional 582) 397, (emphasis 66 S.Ct. at 1050). 327 U.S. 427, dis 85 We 380 U.S. at S.Ct. Lopez). added assertion, however, agree with INS’s filing deadline Congress that intended wrongly that we decid argues INS jurisdictional. reopen to be for motions to Lopez and because Con ed both Varela filing compliance with intended gress starting place our We take as a to be for motions deadlines “every read into federal presumption, an Framed jurisdictional requirement. limitation,” filing that deadlines statute of position is way, other INS’s tolling. Holm subject equitable are a stat operate does not filing deadline 397, at 66 582. We berg, 327 U.S. S.Ct. juris limit is limitations. If a time ute of to the limita no reason not to extend see dictional, subject it is not defenses here the “same rebuttable tions waiver, tolling, equitable or equitable of ap equitable tolling” presumption may still be ex estoppel, although there defendants plies against private in suits “unique based on circumstances.” ceptions against the United States. and also suits Inc., 385, 393, 455 U.S. Zipes v. TWA 95-96, Irwin, at 111 S.Ct. 453. 498 U.S. (ex (1982) 1127, 71 L.Ed.2d 234 Congress is aware of presume limitations, that a unlike plаining statute equitable tolling, Exploration doctrine subject jurisdictional requirement, a States, 435, 449, v. Co. United waiver, tolling, estoppel); Hernandez 571, (1918), and that it 62 L.Ed. 1200 S.Ct. (9th INS, 1352, 630 F.2d 1354-55 -Rivera v. mandatory create a knows how to Cir.1980) circumstances” (applying “unique “if jurisdictional filing requirement “mandatory jurisdic exception to the Irwin, to do so.” 498 U.S. wishes from an filing appeals deadline for tional” 453; see also id. S.Ct. S.Ct. BIA); Judge’s decision to the Immigration equitable tolling ap (presumption INS, Vlaicu v. against plies to time limits suits Cir.1993) (same); Shamsi v. a “realistic assessment of government (9th Cir.1993) (same). In con 762-63 intent”). The INS rebut legislative trast, ordinary “merely a limit is if time tolling by presumption equitable sep engrafted upon statute of limitations showing “good that there is reason be it is jurisdictional grant,” arate equi want the tolling. Congress Ramadan v. Chase lieve that did not (3d 499, 500 Corp., apply.” United Manhattan table doctrine Cir.1998). 347, 350, 117 Brockamp, 519 U.S. States (1997). 136 L.Ed.2d818 S.Ct. congres

The INS is correct recently concluded Circuit Second inquiry in this intent sional controls motions to that the time con must determine “whether case: we tolling. is amenable to by tolling is effectuated gressional purpose Iavorski, The court limitations 232 F.3d at 130. circum [these] the statute of indication, found “no either explicit or im unusually emphatic form.” Id. at intended plicit, Congress that this lim 117 Moreover, S.Ct. 849. the statute itations not be equitably tolled.” “set[ ] forth its in a highly Circuit, Id. Like the Second guid we take manner, detailed that, technical linguisti- ance from the line Supreme Court cases cally speaking, cannot easily be read as that discusses the circumstances under containing implicit exceptions.” Id. At which deadline for filing against suit several points, the statute tied a time lim- government may be equitably tolled. itation to the substantive amount that a cases, These together, taken establish sev taxpayer claim, could which meant that eral useful factors that courts use to tolling the time would also result determine whether or not Congress in in adjustment of the taxpayer’s recov- compliance tended with a peri limitations 351, ery. Id. at 117 S.Ct. 849. The Tax jurisdictional od to be a requirement. Code provision at issue also “reiterate[d] York, In Bowen City New 476 U.S. its limitations several times in several dif- 467, 2022, 106 S.Ct. (1986), 90 L.Ed.2d 462 ferent ways.” 351, Id. at 117 S.Ct. 849. the Court considered equitable whether Even though § 6511 set forth exceptions tolling applied to filing deadline for to limitations, the time exceptions the bringing a challenge court to a final deci- were “very specific” and did not include sion of the Secretary of Health and Hu- equitable tolling. Id. man Services regarding security social Finally, predicted the Court that an ad- benefits. The period, limitations set forth nightmare ministrative would result from 42 in 405(g), U.S.C. provided that a applying equitable tolling to 6511 be- claimant could bring a challenge “within cause of large the number tax refunds sixty days after the him mailing to requested by taxpayers year. every Id. at notice of such decision or such within fur- 352, 117 849. S.Ct. The Court inferred ther time as Secretary the may allow.” potential problem administrative 3, at Id. 472 n. 106 S.Ct. (emphasis 2022 that “Congress likely would have wanted added). In concluding that Congress did whether, to decide explicitly just or where not intend the limitations period to be when, expand the statute’s limita- jurisdictional, the Court persuasive found periods, tions delegate rather than Congress had expressly authorized courts a generalized power do so wher- Secretary the to toll sixty-day limit, the ever a court equity concludes that so re- “thus expressing its clear intention to al- quires.” 353, Id. at S.Ct. 849. For all tolling low 480, some cases.” at Id. reasons, of these the Court concluded that 2022. S.Ct. Congress did not equitable intend tolling In Brockamp, decided more than ten to apply §to 6511. Id. at Bowen, years after the Court considered 849. whether to equitably toll period, the time In United v. Beggerly, §in States established U.S. of the Internal Rev- Code, (1998), S.Ct. enue L.Ed.2d 32 which taxpayers can file the Court held that a twelve-year refund claims with the statute IRS. The Court began Quiet its limitations contained in analysis by the presuming, Title under Irwin, (“QTA”) Act subject time wаs not equitable was equitable tolling. tolling. Brockamp, 519 Id. U.S. at S.Ct. 1862. The 350, 117 at provided S.Ct. 849. The statute Court then limitations turned the language of noting begin did not to run plaintiff until the “set[ ] forth its time knew or should have known about 101-955, at 133 REP. NO. H.R. CONF. property claim to States’ United at News (1990), Cong. & Admin. Code reasoned The Court Id. question. itself the statute provision, of this because equivalent for what already provided notewor mandate is congressional This also Id. Court tolling. First, unlike reasons. for several thy inap- would be felt lim time and “technical” “highly detailed” “unusually generous given propxiate mandate here Brockamp, its issue peri time QTA’s limitations nature of the nor technical. detailed is neither 48-49, 118 S.Ct. 1862. od.” Id. Attorney not instruct mandate does cases, together, taken limits, three

These but adopt specific time General ex in this case. After inquiry guide our Attorney the matter to rather leaves history behind legislative amining Second, the House discretion. General’s reopen estab motions to deadline for the At instructed Committee Conference 3.2(c)(2), after § in lished 8 C.F.R. in exceptions torney “to consider General those at issue deadline to comparing this Bowen, In the justice.” the interest Bowen, Beggerly, we Brockamp, and in had ex Congress that Court concluded for mo filing the deadline conclude the stat authorized where pressly toll to reopen is tions to days or sixty within filing required ute ing. Secretary time the such further “within 3, 106 n. S.Ct. at 472 may 476 U.S. allow.” Congressional Mandate 1. The instructing the Attor Similarly, by no limi- Congress imposed Prior to to dead permit exceptions to ney General a motion an alien could file on when tation Congress has justice requires, lines when 8 C.F.R. or reconsider. See reopen to flexibility ap in the authorized expressly Iavorski, (now rescinded); § 242.22 Iavorski, 232 deadlines. plication per- to the response at 130-31. (noting legislative F.3d at the re- were abusing ception aliens Congress that while “indicates history delay being deported, Con- process to view general limits on motions sought impose to Immigration Act of passed gress the intended limits were not reopen, to these 101-649, (“1990 Act”), Stat. Pub.L. inflexible”). in really If Congress to be 386, 399-400, INS, 514 4978. Stone to for motions the deadline tended (1995). 131 L.Ed.2d S.Ct. jurisdictional, would reopen to be Act, Congress directed the 1990 part As such the General granted Attorney have regulations Attorney to “issue the General have Either it would not flexibility: broad in which of time respect to the all, it would at or exceptions permitted and to reconsider reopen motions itself in no exceptions those specified proceedings, deportation offered in be Brockamp, 519 U.S. terms. uncertain Cf. include limitation regulatiоns which (no tolling where 117 S.Ct. 849 may be such motions that the number of statute were spelled out exceptions time filed and a maximum equita not include “very and did specific” ” Immigration motions.... filing of such tolling). ble 545(d), 104 at 5066. § of 1990 Stat. Act Explanatory Statement The Joint Regu- Department of 2. The Justice’s accompanying the Committee Conference lations General, Attorney 1990 Act directed mandate, congressional Pursuant con- regulations, [to] these “in developing promulgated of Justice justice.” the Department in the interest of exceptions sider regulations in are now codified Presumably response to the House 8 C.F.R. 3.2 (applicable to BIA deci- Committee’s instruction to “consider ex- sions) and 8 C.F.R. 3.23 (applicable ceptions IJ justice,” the interest of decisions). though congressional Even Department of Justice created four excep- mandate is probative congression- more tions to the ninety-day filing deadline. al intent than regulations promulgated The ninety-day deadline does not apply to Department pursuant of Justice (1) to motions to reopen filed aliens who mandate, regulations support also deported absentia; (2) are filed by the conclusion that the filing deadline for aliens seeking asylum or withholding of motions to deportation amenable bаsed on changed country cir- tolling. regulations These cumstances; (3) state that “a jointly filed by the alien party may only (4) file one motion to reopen INS; and the filed by the INS deportation or exclusion proceedings ... where the basis motion is fraud and that motion must be filed no later than original proceeding or a crime that 90 days after the date on which the final support would termination of asylum. 8 administrative decision 3.2(c)(3)(i-iv). was rendered in C.F.R. As noted by the proceeding sought “[tjhese Circuit, be re- Second exceptions to the ” 3.2(c)(2). opened .... 8 C.F.R. time and numerical limitations on motions imposed by the new appear rule This language is neither “unusually respond precisely Congress’ desire to emphatic,” Brockamp, 350, at U.S. cases, provide for certain ‘in interest of 849, S.Ct. nor is it as strong the lan justice’ that would otherwise be ex- guage of the time bar in the Federal Tort cluded by Iavorski, such limits.” 232 F.3d Act, Claims to which we applied have equi (citation omitted). at 132 tolling. table v. Alvarez-Machain United States, 696, Cir.1997) Moreover, the BIA “may any at time (applying tolling to a time bar stated: reopen or reconsider on its motion own ‘“A tort against claim any ‍‌​‌‌​​​‌​​‌​‌‌​‌‌​​‌‌‌​​‌​‌‌‌​​‌​‌​‌​‌‌‌‌‌​​‌​‌​‍United States case in which it has rendered deci- shall be forever barred unless it present 3.2(a). sion.” 8 C.F.R. regulation ed writing to the appropriatе Federal does not specify when the BIA should agency within years two after such claim exercise sponte power sua to reopen, accrues’”) 2401(b)). (quoting 28 U.S.C. but the BIA has ruled that it reopen will The time period ninety days not “un cases that present “exceptional circum- — —is usually generous,” equitable such that J-J, toll stances.” In 976, re 21 I. & N. Dec. ing would be inappropriate. (1997). Beggerly, 1997 WL 434418 In promulgating Cf. 48-49, 118 S.Ct. 1862. The the regulations, the Department of Justice time does not account already rejected considered and the suggestion, tolling by providing only that it begins to commentators, proposed some that the run when an alien knows or should ninety-day for motions to re- known that the BIA rendered a final open deci “good should contain a excep- cause” sion in 48, his or her case. id. at 18,900, 18,902 Fed.Reg. 29, tion. 61 (April Cf. 1862; Pleva, 1996). S.Ct. Lampf Lipkind, Prupis The Department of Justice did not Petigrow Gilbertson, & 350, reject 501 U.S. the suggestion because it believed (1991) 111 S.Ct. 115 L.Ed.2d 321 a “good exception cause” should not (“[T]he 1-year terms, period, by exist; its begins rather, it believed that the BIA’s after discovery of the constituting facts sua power sponte reopen already cases violation, making tolling unnecessary.”). covered the situation of an alien who filed country changed based on reopen tions to good ninety-day

beyond the (2) conditions; deport- who are aliens cause. Id. reopen file a motion to ed in absentia limit the time exceptions to These the final days entry after the within 180 Congress did not us that help convince 240(c)(6)(C)(ii), INA removal order. tolling. While the equitable intend to bar (Hi). 1229a(c)(6)(ii), (iii), 8 U.S.C. can some exceptions presence of detailed two ex- equita only the codification of argument Despite times undermine limit, at 351— Brockamp, ninety-day regu- 519 U.S. tolling, ceptions ble see to the exceptions 117 S.Ct. and the BIA permit continue to IJs lations than specific time, limit are less ninety-day any reopen sponte cases sua the BIA’s Brockamp (particularly those jointly filed also to motions case), any power sponte sua Iavorski, 232 F.3d and the alien. the INS circum examples are all truly Department If the of Justice at 132. from hold refraining warrant stances that be ninety-day deadline to perceived juris time limit is ninety-day ing jurisdictional, regulations would Bowen, n. 476 U.S. at 480 dictional. Cf. additional, excep- these uncodified permit (supporting application tions. Id. tolling by observing point discussing. A final is worth Stat- “regula Security Administration’s Social kinds time limits. impose utes different time for fil governing tions extensions of limits, usually time termed Some of these of fairness ing are based on considerations limitations,” prescribe when a “statutes of claimants”). kind of accommoda “This following the claimant “must first file suit irreconcilable exceptional tion for cases is at which the cause of action arose.” point application that would ... with the strict (Fed. West, Bailey v. jurisdictional limitation.” required be Cir.1998). limits, usually time Other 232 F.3d at 132. Iavorski specifying the time for termed “statutes makes the additional The Second Circuit review,” in a prescribe “the time which itself point Department Justice adjudicative person must remove from one ninety-day filing the dead- has not treated suggests The forum to another.” Id. INS jurisdictional require- if it a line as were filing that the deadline for motions because Department the Shortly ment. Id. after a reopen specify- to is more akin to statute its final rule estab- promulgated Justice than to a statute of ing the time for review limit for motions to lishing ninety-day the limitations, filing the deadline is mandato- (on 29,1996), April Congress enact- reopen subject jurisdictional, and and not to ry (on 1996). September ed IIRIRA Con- Stone, 514 U.S. at equitable tolling. See gress the restrictions on motions codified (describing 1537 statutes in IIRIRA reopen to and reconsider the time for review as “manda- specifying 304(a)(3). the These restrictions follow jurisdictional”). Even if the tory and insofar Department guidelines of Justice reopen a filing deadline for motion an alien to one motion to they as restrict a body the same were more akin to statute requirе the motion to “be filed reopen, it would governing review—and is not—we of the date of the ninety days within reject argument. Like the Fed- the INS’s entry of a final order.” administrative Circuit, not believe that the eral we do 240(c)(6)(A), (C)(i), INA 8 U.S.C. be- (C)(i). distinguish meant to 1229a(c)(6)(A), Supreme Court only The statute limitations and statutes tween statutes of exceptions ninety-day time lists two (1) the time for review apply specifying limit: the limit does not to mo- when

1193 applicable rule generally filing jurisdictional established the deadline be a re- filing Therefore, limits Invin that time involved quirement. we not defer against government presumed suit the are interpretation to the BIA’s that the filing Bailey, subject equitable tolling. to be subject equitable tolling. is 160 F.3d at 1366. Equitable Tolling Applied B. As given seems inescapable

This conclusion Having well as jurispruden- filing Invin itself as its concluded the Bowen, forefather, limits tial involved time for motions to that can both be described as statutes equitable tolling, nowwe consider whether specifying limitations and as statutes filing period should have been tolled “can time for review. statute Irwin We will apply case. toll “ or a be viewed as a statute of limitations where, ing ‘despite in situations all due review, specifying statute the time for be- diligence, party invoking equitable [the cause limit the time 30-day measured tolling] is unable to vital obtain informa in which initiate a case in United bearing tion on the existence of the ” States District Court would revisit Supermail, claim.’ F.3d at 1207 charge alleged of discrimination before the (quoting Sec’y of Dep’t Stevens v. Health 160 F.3d at Simi- Bailey, EEOC.” Servs., (1994)). & Human Fed.Cl. larly, in Bowen de- the statute can be previously applied equitable We have toll both a statute of scribed ing in alien situations where an was un as a statute the time of review specifying aware, despite due diligence, he sixty-day because the limit there measured missed the limitations bring the time in which to case by motion to due to fraud a third challenge district court that would the de- Varela, party, F.3d at and due to security by nial of social benefits the Sec- counsel, Lopez, ineffective assistance of retary of Health and Human Services. at 1100. But doctrine Bowen, at 472 n. S.Ct. limited no means to these situations. statute). Supreme (quoting Given that the equitable tolling Court held that could be inability to obtain vital infor applied to the time limits in both Invin bearing mation on the of a claim existence Bowen, reject suggestion we wrongful need not be caused con can stat- apply never Rather, third party. party duct of a specifying utes the time for review. invoking tolling only need show that his or period ignorance her the limitations was Agency 3. Deference beyond рar caused circumstances the urges that we to INS defer control, see, ty’s e.g., Runyon, Stoll recognize the BIA’s refusal an (9th Cir.1999) 1238, 1242 (plaintiffs tolling exception filing for deadline incapacity mental warranted toll may only motions to We defer to that ing), go these circumstances be however, agency decisionmaking, when yond variety a claim of excusable “garden Chevron, congressional is intent unclear. Irwin, 111 neglect.” S.Ct. at 458. After U.S. at S.Ct. 2778. case, Socop In seeks to toll employing the “traditional tools of statuto time he filing during the the was construction,” ry id. at 843 n. deportation that final unaware his order 2778, we intended Congress conclude 5, 1997, May had become effective'—from filing period reopen the for motions to BIA case to limitations; when the returned his operate as a Con statute Court, 7, 1997, gress July compliance Immigration did not intend with the until (9th Cir.2000), suggests that F.3d 1170 “Bag Baggage” when he received deporta- for we must ordering report tolling Socop, him to order to extend letter whether, despite due question reasonably tion. The inquire further whether he during this prevented was diligence, expected to file his motion could have been beyond con- circumstances his period, by twenty-seven days within the neglect,” beyond “excusable going trol and In remaining period. in the limitations deporta- order of discovering from that his Maria, that the plaintiff asked Santa vital infor- effective—the tion had become to the 300- apply equitable tolling court in order to determine mation he needed charge day limitations for required that a motion to was Id. at 1178. The court with the EEOC. his status. preserve order to because, tolling even if apply declined to difficulty answering this have no not have access to vital plaintiff did de- question the affirmative. on the existence of his bearing information triggered precisely be- portation order was he part period, claim for of the limitations rights. his diligently pursuing he was cause to that information before gained access from the INS Socop sought advice Id. at 1178- 300-day period expired. attempting because he was place first regardless panel 79. The held of mar- adjust his status on the basis plaintiff gained enough knowl- when the an American citizen. He visited riage to suit, edge “equitable him to file to enable April office in Westminster on the INS ADA tolling may not be invoked an and, day, he fol- very on that same who, period, within the limitations plaintiff officer’s advice and wrote a lowed the INS has sufficient information to know of the withdrawing asylum letter to the BIA Id. possible existence of a claim.” at 1179. later, April on appeal. About two weеks holding of this implication 23, 1997, Socop filed an immediate relative apply equitable tolling courts should not adjustment for petition, application visa plaintiff situations where a discovers the status, employ- and an application existence of a claim before the end of awaiting ment authorization. period and the court believes appli- these regarding word from the INS plaintiff reasonably could have when the BIA returned his case to cations expected bring been a claim within the Immigration May Court period. remainder of the limitations This 7, 1997, May July Between 1997 and adopted by was also approach no reason to that his Socop had believe in a case cited with Seventh Circuit deportation order had become effective. Maria, approval in Cada v. Baxter Santa fact, every he had reason to believe Corp., Healthcare procedure he had followed the correct Cir.1990) (holding plaintiff that when a adjusting therefore hold his status. We gathers “necessary information af- (a May July until ter the claim arose but before the statute days) total of 63 should not have counted .... plaintiff of limitations has run [the] ninety-day period during toward the which equitable tolling who invokes must a Socop reopen. could have filed motion bring suit within a reasonable time after July We note that on when obtained, could by diligence he has or due put deportation first on notice that his obtained, necessary informa- have the effective, had he still had order become tion”). in twenty-seven days which he could have to toll- accept approach Were we to this A case in filed a motion to recent circuit, Bell, inquire we would need to whether ing, our Maria v. Pac. Santa 2000e-16(c) Irwin, expiration begins learned before the to run.” —who added). ninety-day filing period that his at (emphasis of the U.S. S.Ct. 453 deportation order had become effective— employ These cases the conven reasonably expected have could been tional rule that when a statute of limita twenty- in file his motion the tolled, tions days is the a during tolled days remaining in the limitations seven period simply against are not counted period. limitations period. The rule in employed believe, following and the discussion Maria, by Santa and also the Seventh demonstrate, will approach Cada, in imposes Circuit complicat more administer, tolling needlessly difficult to in ed scheme: addition to determining runs counter to Supreme precedent, Court party invoking whether tolling was policy objectives and undermines the of unаble, despite diligence, due to discover statutes limitations. claim, the existence of a a court must also limitations, tolling In statutes of courts determine party whether the discovered typically assumed that the event that early the need to file in enough the limita simply stops “tolls” the statute the clock period tions that he or she could reason until the occurrence of a later event that ably expected be period to file before the permits running. statute resume Maria, 1179; expired. Santa 202 F.3d at See, Utah, e.g., Pipe Am. & Const. Co. Cada, 920 F.2d at 453. 538, 561, 414 U.S. 38 L.Ed.2d away The Santa Maria rule does with (“The (1974) brought by class suit major advantages of limita- statutes days yet Utah was filed with 11 to run in certainty uniformity tions: the relative 5(b), tolled by and the which a statutory period may with cal- be days intervenor thus had 11 after the en Burnett, applied. culated and order try denying participation them at (stating 85 S.Ct. 1050 in the suit in as class members which to policies served statutes of limitations permission move for to intervene. Since “uniformity are certainty”). While un- only days their motions were eight filed tolling der the conventional rule there order, entry Judge after the Pence’s it uncertainty any given be case whether timely.”) the motions were follows all, equitable tolling apply will par- added); (emphasis Daviton v. Colum ties are able to calculаte with some cer- Corp., Healthcare bia/HCA tainty the on date which the would (9th Cir.2001) (en banc) (stating that applied, according- run if and act if tolling plaintiffs would have applied, Moreover, ly. litigants across the board filing period the full remainder of the —six given are the same amount of time suit); which Supermail, months—in to file which to file claim. The Santa Maria (holding that where the rule, contrast, promotes inconsistency government provided inaccurate informa calculation, application uncertainty plaintiff, tion to the causing plaintiff to undermining purposes thus two of the delay filing, improper dismissal was be served statutes of limitations. plaintiff tolling “up cause could establish Maria was approach taken Santa levy the date that it learned of the IRS’s rejected by Supreme also added). explicitly In property”) (emphasis its Burnett, deed, Court in Burnett. the Court phrased the Court in Irwin the issue limi- apply equitable tolling decided to to a terms consistent this understand bring within which ing, noting granted certiorari “to tations suit 30-day period Employers’ Liability determine when the under under the Federal (FELA). Burnett, 434-35, reject ‍‌​‌‌​​​‌​​‌​‌‌​‌‌​​‌‌‌​​‌​‌‌‌​​‌​‌​‌​‌‌‌‌‌​​‌​‌​‍ap Accordingly, at we 380 U.S. Act Maña, in originally tolling adopted filed to Santa plaintiff proach 85 S.Ct. 1050. venue, brought inquire Socop and suit whether wrong suit and we need after the limita- only venuе his motion to proper reasonably could have filed run. Id. at 85 S.Ct. period had twenty-seven days tions re reopen within cir- deciding 1050. After maining period in the limitations after he application warranted the cumstances letter. “Bag Baggage” received the for how had to determine tolling, the Court Iavorski, (asking only 232 F.3d at 134 Cf tolled. period should be long diligence whether the alien acted with due rejected sugges- explicitly The Court during period seeks to have to [he] “the “for a filing period be tolled tion (citation tolled”) quota and internal or- time’ after the state court ‘reasonable omitted). Instead, tion marks we need be- plaintiffs ders the action dismissed” within the only Socop ask whether filed cause a rule “would create uncertain- such taken into tolling limitations after ty exactly as to when the limitation ninety days after Socop account. had until to run.” Id. at again begins or until July reopen, 7 to file a motion to Instead, greater in the name of 1050. Socop filed his motion to October uniformity certainty, the Court 11, 1997, which is well reopen August prin- that “under familiar adopted the rule Therefore, cut-off. before the October 5 applied which have been to statutes ciples Socop’s reopen timely motion to filed. provision the limitation of limitations until the state cоurt order dismiss- tolled C. Remand to the BIA ” final.... ing the state action becomes above, grant For the reasons we stated precedent appears to foreclose the Id. This review, Socop’s petition for reverse the tolling to taken in Santa Maria approach reopen, motion to Socop’s BIA’s denial and Cada. to the BIA. final com- and remand One Finally, approach taken that, in order. note in addi- ment is trumps Santa Maria and Cada what is holding Socop’s motion to re- tion arguably Congress’ policy objec- intended filed, untimely the BIA also held open was setting statutory a limitations tives forth the alternative motion permit plaintiffs speci- to take —to reopen should be denied because he did (even they fied amount of time if don’t petition an approved not submit visa 452) it,” Coda, further “need adjustment application for status their claim and consider their investigate the time he filed his motion to options deciding before whether to file is incorrect holding The BIA’s alternative suit. A court decide whether or not simple Socop for one reason: did not file a limita- equitable powers to use its to toll a adjustment motion to to seek period, arguably usurps tions but a court status; rather, he filed a motion to congressional authority when tоlls and request asy- that the BIA reinstate his then rewrites statute Therefore, appeal. lum there was no need substituting subjective its own view of how approved peti- to submit an visa reasonably much plaintiff time needed adjustment petition tion or an of status Moreover, Maria file suit. Santa reopening be entitled to the of his case. approach provides plaintiff /Cada BIA fully correctly observes an incentive to rush to court without claim—a at the time filed his motion to re considering policy his or her (on 11, 1997), had parties open August serves none of the involved. the INS (it ply jurisdiction was don’t have yet approved petition any his visa under of the 1998). BIA April by majority. The theories advanced approved law, however, a matter of incorrect as Socop-Gonzalez (“Socop”) first raised Socop required approved to submit an was the issue of argu- at oral grant BIA to petition visa order for the court; ment before the en banc we have It reopen. his motion to is true that had jurisdiction only over issues raised before reopen filed a motion to Socop seek the Board Immigration of Appeals status, adjustment BIA only of could (“BIA”). Socop’s plight may While be granted motion if he also his submit- sympathetic, nothing, forty-four not even In approved petition. ted visa re pages energetic legal massage by the (1992). Arthur, 20 I. & N. Dec. 475 majority, can jurisdictional cure the defect in this case. Socop’s petition for review But Socop reopen did not move to his challenging the BIA’s denial of his motion deportation proceedings on the basis that reopen should have been dismissed for newly eligible adjust- he had become for jurisdiction. lack of Rather, purpose ment of status. Socop’s reopen motion to was to reinstate I asylum appeal, which he had

his errone- April In timely ap- filed a ously dismissed at the direction of the peal with the BIA seeking review of the interim, In Socop hoped, INS. Immigration Judge’s denying decision his course, grant that the INS would his visa request asylum withholding of de- petition. actually concedes INS portation. Socop, acting indeed on poor point supplemental its brief to the en officer, him given advice an INS panel, banc where it states: “The relief sought pending appeal withdraw his Socop requested his motion reopen] [in with the BIA in April May 1997. On status, rather, adjustment was not but granted the BIA request, his which appeal....” reinstatement of his Red constituted a final administrative determi- Supp. Br. at 11.

nation in his case. Socop thereafter decid- V. ed that he never should have withdrawn appeal and filed a to reopen motion CONCLUSION However, the BIA. with motion ninety-day filing period for motions days petitioner was seven late: a must file to equitable tolling, ninety days motion to within and the facts of this case warrant the final administrative determination. tolling. grant petition We therefore 3.2(c)(2). See 8 C.F.R. review, denial reverse the BIA’s of the hurdle legal dealt reopen, motion to and remand to the BIA the BIA that vigorously arguing to so that it consider the merits of So- was from equitably estopped INS enforc- cop’s motion to ing ninety-day period.

PETITION GRANTED. REVERSED particular, upon he relied In re Petition of AND REMANDED. LaVoie, (D.Vi.1972),in F.Supp. which a district comb held that the INS O’SCANNLAIN, Judge, with Circuit equitably estopped enforcing was from Judge joins, whom Circuit SILVERMAN provision Immigration and Natural- dissenting: BIA, however, unper- ization Act. The respect, argu- I regret, by Socop’s equitable estoppel With and with must suaded ment, untimely. opinion; dissent the comb’s we sim- and denied his motion as 1198 (9th uralization, 906, F.2d 907-08 Cir. 831 for review this petitioned then

Socop 1987) (“Failure in an equitable es- to raise issue his Socop court. reasserted rejected. deprives BIA ... this court panel appeal the which toppel argument, matter.”). 838, Be jurisdiction 208 F.3d 840 to hear the v. of Socop-Gonzalez (“We (9th Cir.2000) that the doctrine the issue of Socop hold cause fаiled raise BIA, apply we are estoppel tolling does with the equitable equitable ”)(cid:127) agreed to hear the jurisdiction. After we case.... without banc, press continued to Socop case en II briefs. argument equitable estoppel majority advances three unconvinc however, argument, oral At the en banc jurisdic ing arguments in its strain to find changed Socop course. suddenly Socop First, equitable tolling. the tion under ninety-day period the was argues now that Clark, majority upon relies Honda v. 386 have repeatedly As we equitably tolled. 484, 1188, L.Ed.2d 244 U.S. 18 equitable equitable estoppel explained, (1967). Honda, the Yok depositors See, e.g., two doctrines. tolling are distinct Bank claims the Specie against ohama filed Bell, 202 F.3d Maria v. Santa Pacific Trading with the United States under the (9th Cir.2000) (discussing differ had Enemy Appeals Act. The Court of doctrines); the two Leh ences between time- depositors’ held that the claims were States, v. 154 F.3d man United Katzenbach, barred. See Hondo Cir.1998) (9th (same); Naton v. 1015-17 (D.C.Cir.1966). The Su Cal., Bank Cir. reversed, that preme concluding Court the 1981) (same). Equitable estoppel holds equitably limitations tolled. taking from party may precluded that a be Honda, 87 S.Ct. 1188. affirmative mis position because of his See, Lehman, e.g., conduct. majority deposi- concedes the that a Equitable tolling provides 1016-17. equitable tolling, tors raised as distin- may toll the party’s ignorance excusable with the guished estoppel, from Lehman, See, e.g., period. Nonetheless, majori- Supreme Court. the equitable estoppel, F.3d at 1015. Under ty remarkably that Honda concludes the nature of the primary focus is party that if a proposition stands for the equitable tolling, INS’s conduct. Under only equitable estoppel, the court raises igno whether primary focus is equitable tolling whether may still consider rance of the limitations is excusable. applies. depositors The fact that separate. Socop Each issue is distinct and tolling, argue equitable Honda did not BIA; only estoppel raised before the he apart equitable estoppel, in their now for the first time. raises brief, Appeals is irrele- opening Court fact that majority vant. The overlooks the jurisdiction

Congress has confined our Supreme suggested never Court only petitioner those issues that depositors failed to raise toll- raised before the BIA. See 8 U.S.C. 1105a(c) 1996);1 courts.2 This omission (repealed ing see also Var with the lower Immigration unsurprising given government and Nat is that the gas Dept. v. U.S. rules, 1105(a). Illegal applicable Congress repealed it remains to his case. See 309(c)(1)(B), Immigration Immigrant Respon- 110 Stat. at 3009-625. Reform аnd (IIRIRA), 306(b), sibility Act of 1996 3009-546, Nonetheless, Supreme depos- Stat. 3009-612. 2. The Court did note that the concedes, majority "largely” argued equitable estoppel ante at because itors Court, and that the lower courts had to IIRIRA's transitional surprising given had this not at all the fact depositors argue did not only argued cannot as- equitable tolling. equitable estoppel waived indepen- BIA. if Supreme Court front of the Even the BIA had sume depositors decision, failed dently equitable tolling discovered addressed in its opening the issue its brief merely to raise it would be relevant to whether Appeals. Court raised the issue with the BIA. We only jurisdiction over issues that event, majority’s reliance any In actually petitioner were raised be- misplaced. majority The upon Honda low; jurisdiction acquire simply we cannot a critical distinction between overlooks BIA because the decides to review an issue Immigra- Honda and this case: unlike sponte. Singh-Bhathal sua v. Act, Nationality under the Trad- tion and (9th Cir.1999) (holding juris- ing Enemy with the Act there is no jurisdiction that court lacked over an issue that were dictional bar to consider issues not raised in front of the BIA even though raised below. Honda cannot properly BIA expressly dissenter considered the support majority’s Socop’s excusal of issue). event, any BIA Socop’s because equitable tolling. raise attempt belated filings unambiguously show he was Ill only arguing equitable estoppel, the fact BIA might have considered the majority next claims that we should jurisdictional issue is irrelevant jurisdiction “penaliz[ing] to avoid assert lawyer’s question. for his failure to seize on equitable tolling.” Majority Opinion at underlying circumstances of this essence, majority 1185. In claims case are unfortunate. But can- “bad facts” excuse failure to raise we should jurisdiction not create where none exists. the doctrines of because I from the respectfully majority’s dissent estoppel equitable tolling are grant Socop’spetition for review. easily confused with one another. While the subtleties between doctrines

help explain Socop’s lawyer’s poor perfor-

mance, jurisdictional it cure the cannot “Failure to

defect this case. raise America, appeal deprives in an to the BIA ... issue UNITED STATES of jurisdiction this court of to hear the mat- Plaintiff-Appellee, Vargas, Scoop’s ter.” 831 F.2d at 907-08. lawyer’s simply irrele- poor performance is MENDEZ-CASILLAS, Guadalupe Jose ‍‌​‌‌​​​‌​​‌​‌‌​‌‌​​‌‌‌​​‌​‌‌‌​​‌​‌​‌​‌‌‌‌‌​​‌​‌​‍jurisdictional question. vant to Defendant-Appellant. No. 99-30266.

TV Finally, majority incredulously of Appeals, United States Court the BIA considered whether claims Ninth Circuit. equitably

the limitations should be Argued and Submitted Dec. majority tolled. The fact that the makes Filed Dec. argument telling. last is There is not hint anywhere even a the BIA’s decision equitable tolling, op- considered course,

posed equitable estoppel. Of Honda, equitable estoppel. limited its discussion to 386 U.S. at 87 S.Ct. 1188.

Case Details

Case Name: Oscar Socop-Gonzalez v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 5, 2001

Citation: 272 F.3d 1176

Docket Number: 98-70782

Court Abbreviation: 9th Cir.