Torabi v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 30, 2006
Charles R. Fulbruge III
Clerk
No. 04-60123
FARIDEH TORABI; MAZIAR GOSHTASEBI,
Petitioners,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review from the
Board of Immigration Appeals
(A79 466 425)
Before JOLLY and BARKSDALE, Circuit Judges, and LITTLE, District
Judge.*
PER CURIAM:**
Presently at issue is whether the Board of Immigration Appeals
(BIA) abused its discretion in denying Farideh Torabi’s motion to
reopen, based on her statutory eligibility to adjust to permanent
resident status. An alternative issue, not reached today, is
Torabi’s challenge to the BIA’s decision that she failed to
establish eligibility for asylum, withholding of removal, or relief
*
District Judge of the Western District of Louisiana, sitting
by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
under the Convention Against Torture (CAT). Concerning the motion
to reopen, we remand for consideration of adjustment to permanent
resident status. Pending that decision, we retain jurisdiction to
consider whether Torabi is entitled to relief under the other
claimed bases. REMANDED FOR LIMITED PURPOSE.
I.
Torabi, a 49-year-old, is a native and citizen of Iran, as is
her son, Maziar Goshtasebi, a 19-year-old. Both entered the United
States in May 2000 on temporary visas. (Because Goshtasebi was a
minor during the proceedings before the immigration judge (IJ), his
claims are derivative of Torabi’s.)
In April 2001, Torabi submitted an application for political
asylum with the Immigration and Naturalization Service (INS); but,
after being interviewed by the INS, she was found ineligible.
After receiving notices to appear for removal proceedings, Torabi
appeared before the IJ. At that hearing, Torabi, her son, and Drs.
Dehghani and Sadri testified regarding Torabi’s applications for
asylum, withholding of removal, and relief under the CAT. The
testimony was in Farsi and translated by an interpreter.
In part, Torabi offered the following evidence. She is a
Sunni Muslim, a nurse, and married to a physician. Her involvement
in Iran in a women’s freedom movement group led to her arrest and
being taken into custody in 1990; as a result of police beatings,
she suffered, inter alia, a miscarriage and a broken nose and
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teeth. After being re-arrested in 1991 for her association with a
Sunni leader, she was whipped and sexually abused. In 1994, the
government forbade her from practicing nursing in both government
and private hospitals because of her lack of respect for Islam.
Her husband was repeatedly arrested and subjected to severe
beatings. The government threatened to take her son away from her
if she continued protesting his compulsory attendance at a Shiite
theology class taught at his school.
In denying relief, the IJ stated: “During these proceedings,
... the Court carefully listened to [Ms. Torabi’s] testimony and
observed her demeanor. Ms. Torabi’s demeanor in and of itself did
not connote a lack of truthfulness. However, Ms. Torabi tended to
embellish parts of her story”. The IJ then cited inconsistencies
in her testimony.
The BIA dismissed Torabi’s appeal in January 2004; voluntary
departure was reinstated. Citing a lack of corroborating evidence
and possible exaggerations in Torabi’s testimony, the BIA concluded
that she failed to establish a well-founded fear of persecution.
It also ruled that Torabi’s fear of punishment for refusal to send
her son to a “universally required” religious school did “not arise
from being singled out on account of a protected ground”.
Torabi petitioned this court for review. Subsequently, she
received an approval notice for her I-140 application, making her
immediately eligible to adjust to permanent resident status under
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the Immigration and Nationality Act (INA) § 245(I), 8 U.S.C. §
1255. Torabi informed this court of such eligibility; therefore,
on 25 May 2004, our court stayed the proceedings here, pending a
decision on Torabi’s motion to reopen in the BIA. The BIA denied
that motion as untimely.
Thereafter, Torabi filed a status report with this court on 23
June 2004, within 30 days of the BIA’s order, seeking review of the
motion’s denial. Additionally, she filed an emergency motion to
remand to the IJ based on her eligibility to adjust status, which
was carried with the case by a panel of our court.
II.
Concerning the denied motion to reopen, we first address our
jurisdiction vel non to consider Torabi’s seeking review of that
denial. In doing so, we examine: whether she filed the requisite
petition for review; and whether we can review the untimeliness
basis for the motion’s denial. Because we hold jurisdiction
exists, we next consider whether the BIA abused its discretion in
denying the motion; we hold that it did.
A.
As noted, in holding that we have jurisdiction, we examine two
possible bases for precluding it.
1.
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Respondent claims we lack jurisdiction to review the motion’s
denial because Torabi did not file a petition for review of that
decision. Pursuant to 8 U.S.C. § 1252(b)(1), a “petition for
review must be filed not later than 30 days after the date of the
final order of removal”. See Giova v. Rosenberg, 379 U.S. 18
(1964) (holding that the denial of a motion to reopen is construed
as a final order of removal for purposes of an appellate court’s
jurisdiction). Torabi’s status report, filed here on 23 June 2004,
within 30 days of the denial of her motion, sought review of that
denial. That report is both a constructive and timely petition for
review. See Tapia-Acuna v. INS, 640 F.2d 223, 224 n.3 (9th Cir.
1981) (holding, under former statute, that a notice filed by the
INS notifying the court that the BIA had issued its decision
manifested clear intention of the parties to seek review of the
second BIA decision and, thus, construing the notice as a second
petition for review), superseded on other grounds by statute as
recognized in United States v. Estrada-Torres, 179 F.3d 776, 778
(9th Cir. 1999), cert. denied, 531 U.S. 864 (2000).
2.
Respondent does not offer any additional challenge to our
jurisdiction to review the denial of Torabi’s motion. Of course,
we have a duty, sua sponte, to determine jurisdiction vel non.
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). As discussed
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infra, we have jurisdiction to review whether the BIA abused its
discretion in denying the motion as untimely.
Under 8 U.S.C. § 1252(a)(2)(B)(i), this court is stripped of
jurisdiction to review BIA final orders regarding granting of
relief vel non under 8 U.S.C. § 1255 (allowing for adjustment of
status of a nonimmigrant to that of a person admitted for permanent
residence). As noted, in denying Torabi’s motion, however, the BIA
never reached the merits of her adjustment-of-status request under
§ 1255; the denial was based solely on the motion’s untimeliness
under 8 C.F.R. § 1003.2(c)(2). Thus, we have jurisdiction to
review the denial of Torabi’s motion to reopen. See Medina-Morales
v. Ashcroft, 371 F.3d 520, 525-27 (9th Cir. 2004) (concluding 8
U.S.C. § 1252(a)(2)(B)(i) did not strip jurisdiction to review the
BIA’s denial of a motion to reopen because the IJ never ruled on
the merits of the petitioner’s adjustment-of-status petition under
§ 1255); see also Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir.
2005) (holding that the court had “jurisdiction over the BIA’s
denial of an untimely motion to reopen deportation proceedings in
instances where the petitioner file[d] such a motion seeking to
avail himself of the [statutory] exception for ‘changed
circumstances’”); Prekaj v. INS, 384 F.3d 265, 267-68 (6th Cir.
2004) (explaining that the court had jurisdiction to review the
BIA’s decision not to reopen the petitioner’s case); Lara v.
Trominski, 216 F.3d 487, 496 (5th Cir. 2000) (ruling that
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jurisdiction existed to consider whether the BIA erred in denying
the petitioner’s motion to reconsider its denial of his motion to
reopen).
B.
The BIA’s denial of Torabi’s motion is reviewed for abuse of
discretion. Lara, 216 F.3d at 496 (“[T]he abuse of discretion
standard applies to motions to reopen regardless of the underlying
basis of the alien’s request for relief”.) (quoting INS v. Doherty,
502 U.S. 314, 323 (1992)) (internal quotation marks omitted). We
hold the BIA abused its discretion by its untimeliness basis for
denial.
1.
Pursuant to regulation, not statute, a motion to reopen must
be filed within 90 days of the date of entry of the final
administrative order of removal. 8 C.F.R. § 1003.2(c)(2). The
BIA’s underlying decision was issued on 29 January 2004; thus, for
timeliness purposes, Torabi was required to file her motion to
reopen by 28 April. Torabi, however, did not receive notice of her
eligibility to adjust status to lawful permanent resident until 3
May 2004 — a few days outside the 90-day period for timely filing.
Torabi’s motion to reopen was promptly filed on 12 May.
On 9 June 2004, the BIA denied the motion, explaining that,
because it was outside the 90-day limit, it was “filed out of time
and will be denied”. Torabi asserts, however, that the motion
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should have been considered on the merits because it was based on
material evidence — her eligibility to adjust to permanent resident
status — that was not previously available. Torabi relies on 8
C.F.R. § 3.2(c)(1) (2003), current 8 C.F.R. § 1003.2(c)(1) (2005),
which states: “A motion to reopen ... shall not be granted unless
... [the new] evidence sought to be offered is material and was not
available and could not have been discovered or presented at the
former hearing”.
Respondent replies that 8 U.S.C. § 1252(a) prohibits our
remanding the motion for consideration of new evidence under 28
U.S.C. § 2347(c) (allowing courts of appeal to order additional
evidence, to be taken by the agency appealed from, where that
evidence is material and there were reasonable grounds for its not
being presented before the agency). Other circuits have indeed
interpreted earlier versions of § 1252(a) as prohibiting appellate
courts “from ordering the BIA to consider evidence that is offered
for the first time on appeal, even if such material satisfies the
rigors of § 2347(c)”. Najjar v. Ashcroft, 257 F.3d 1262, 1281
(11th Cir. 2001) (emphasis added); see Reyes-Melendez v. INS, 342
F.3d 1001, 1006 (9th Cir. 2003) (holding that appellate courts are
precluded “from remanding cases to the BIA for the taking of
additional evidence under ... § 2347(c)”).
Here, however, the evidence offered in support of the motion
to reopen was not presented for the first time on appeal; rather,
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it was presented with Torabi’s motion to reopen. Thus, § 1252(a)
does not preclude our remanding to the BIA for consideration of
Torabi’s eligibility to adjust to permanent resident status.
2.
Torabi’s motion was not denied because of the BIA’s failure to
consider this evidence, but rather was denied based on its
untimeliness; therefore, we address why the BIA abused its
discretion in this respect. As urged in Torabi’s status report,
the harsh results of this case, in our discretion, require
application of the doctrine of equitable tolling. Under this
doctrine, the BIA should have considered Torabi’s motion on the
merits.
Because the 90-day limitations period under 8 C.F.R. §
1003.2(c)(2) is not jurisdictional, the doctrine of equitable
tolling may be applied. See Borges v. Gonzales, 402 F.3d 398, 406
(3d Cir. 2005) (following the Ninth Circuit’s determination to
apply equitable tolling to motions to reopen, and additionally
noting that “[t]he First, Second, Fourth, and Sixth Circuits have
more generally considered applying, or have applied, equitable
tolling to motions to reopen”); Iavorski v. INS, 232 F.3d 124, 132
(2d Cir. 2000) (concluding that the 90-day period to file a motion
to reopen is not jurisdictional and thus is subject to equitable
tolling); see also Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.
1998) (explaining that, because the Antiterrorism and Effective
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Death Penalty Act’s time limitation period is not jurisdictional,
the doctrine of equitable tolling could be applied in “rare and
exceptional circumstances”), cert. denied, 526 U.S. 1074 (1999).
Because the doctrine of equitable tolling “is read into every
federal statute of limitation”, Holmberg v. Armbrecht, 327 U.S.
392, 397 (1946), it is appropriate to apply the doctrine in the
present case, where the 90-day period is not jurisdictional, but
rather is a limitations period pursuant to a regulation. See Lopez
v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999).
On these facts, Torabi’s not discovering she was eligible for
permanent resident status until a few days after the 90-day
deadline led to an inequitable result; thus, we hold that the
doctrine of equitable tolling applies. See Davis, 158 F.3d at 810
(“The doctrine of equitable tolling preserves a plaintiff’s claims
when strict application of the statute of limitations would be
inequitable.”) (internal citation and quotation marks omitted).
“We will apply equitable tolling in situations where, despite all
due diligence, [the party invoking equitable tolling] is unable to
obtain vital information bearing on the existence of the claim.”
Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en
banc) (internal quotation marks omitted) (alteration in original)
(noting that, although the court had applied equitable tolling in
the past to instances of fraud and ineffective assistance of
counsel, “the doctrine is by no means limited to these
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situations”). Torabi was unable to obtain information vital to her
adjustment-of-status claim because she was not informed of her
immediate eligibility to adjust to permanent resident status until
3 May 2004, approximately five days after her deadline to move to
reopen. She filed her motion to reopen with the BIA on 12 May,
just days after receiving notice of her eligibility for adjustment
of status.
Accordingly, we hold the BIA abused its discretion in refusing
to toll Torabi’s filing deadline so that she could present evidence
of her newly granted eligibility for adjustment of status. Because
Torabi’s motion was denied as being untimely, the merits of her
adjustment-of-status claim have not been addressed. Obviously, if
Torabi is entitled to such adjustment, we need not reach the other
bases on which she seeks relief. The merits of her motion should
be addressed first by the BIA. Accordingly, this matter is
remanded to the BIA for the limited purpose of deciding the motion
to reopen on its merits. See Asani v. INS, 154 F.3d 719, 725 (7th
Cir. 1998).
III.
For the foregoing reasons, we REMAND to the BIA for the
limited purpose of its considering the merits of Torabi’s motion to
reopen to adjust status. We retain jurisdiction; and, following
such consideration, if the BIA declines to adjust Torabi’s status,
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this panel will decide whether Torabi should be granted asylum,
withholding of departure, or relief under the CAT.
REMANDED FOR LIMITED PURPOSE
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