Pervaiz, Abida v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2958
ABIDA PERVAIZ,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A 72 104 055
____________
SUBMITTED MARCH 21, 2005—DECIDED APRIL 18, 2005
____________
Before BAUER, POSNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Abida Pervaiz, a Pakistani, came to
the United States in 1991 on a tourist visa, overstayed, and
eventually applied for asylum or alternatively for with-
holding of removal. On January 31, 2002, the immigration
service informed her lawyer that the hearing on Pervaiz’s
claim of asylum would be held on January 24, 2003, at 1 p.m.
On May 15, 2002, the service sent the lawyer a letter stating
that the time of the hearing had been changed from 1 p.m.
to 9 a.m. January 24, 2003, arrived, and Pervaiz and her
2 No. 04-2958
lawyer showed up for the hearing—at 1 p.m.—only to be
told that because she had failed to appear at 9, her claim for
asylum had been deemed abandoned and she had been
ordered, in absentia, removed.
On May 8, 2003, her lawyer filed a motion to reopen the
asylum proceeding and set aside the in absentia removal
order. 8 U.S.C. § 1229a(b)(5)(C)(ii). The motion stated that
the lawyer hadn’t received notice of the change in the time
of the hearing, but it cited no statutory or other basis for
rescinding the order of removal on this ground. The immi-
gration judge denied the motion on June 13, 2003, stating
cryptically (but the motion had been cryptic) that “counsel
for [Pervaiz] has failed to establish that notice upon her was
defective, and the presumption of adequate notice has not
been rebutted. Based on the foregoing, her motion to reopen
must be denied.”
Pervaiz retained another lawyer, who on April 15, 2004,
filed, this time with the Board of Immigration Appeals,
before which the appeal from the June 13 ruling was pend-
ing, another motion to reopen. The ground was that the order
would not have been issued had it not been for ineffective
assistance by her first lawyer. Although the constitutional
doctrine of ineffective assistance of counsel, being an inter-
pretation of the Sixth Amendment’s right to counsel in
criminal cases, is inapplicable to civil litigation—including
removal, Stroe v. INS, 256 F.3d 498, 499-501 (7th Cir. 2001)—
the Board of Immigration Appeals has, in the exercise of its
discretion, decided that ineffective assistance can be a
ground for forgiving a failure to comply with required
procedures. Id. at 501. The government does not challenge
the Board’s claim to have this discretionary authority.
On July 1, 2004, the Board of Immigration Appeals both
affirmed the immigration judge’s ruling of June 13 on the
ground that notice to Pervaiz’s lawyer of the change in the
No. 04-2958 3
time of the hearing was all the notice that was required, and
denied the second motion to reopen on the ground that it
had been filed after the 180-day statutory deadline for
motions to reopen in absentia proceedings. The first ruling
was correct at least in the sense that mailing notice of a
hearing date to the alien’s lawyer at his correct address is
notice to the alien, even if the notice doesn’t arrive. 8 U.S.C.
§ 1229(a)(2)(A); Wijeratne v. INS, 961 F.2d 1344, 1347 (7th
Cir. 1992); Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003);
Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (per
curiam); Anin v. Reno, 188 F.3d 1273, 1277 (11th Cir. 1999)
(per curiam). Thus the notice was not defective. But the
ruling wasn’t responsive to the motion, the basis of which
was that the notice hadn’t arrived, not that it had been
mailed to the wrong address, or not mailed at all, or that
it should have been sent to the alien rather than to her
lawyer. (On the distinction between notice and receipt see
Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004).) At
any rate, Pervaiz challenges only the denial of the second
motion to reopen.
The 180-day deadline is not, as the Board believed, juris-
dictional. Borges v. Gonzales, 2005 WL 712367, at *1 (3d Cir.
March 30, 2005). It is merely a statute of limitations and is
therefore subject to equitable tolling. Id.; Lopez v. INS, 184
F.3d 1097, 1100 (9th Cir. 1999); see also Joshi v. Ashcroft, 389
F.3d 732, 734-35 (7th Cir. 2004); Harchenko v. INS, 379 F.3d
405, 409-10 (6th Cir. 2004); Riley v. INS, 310 F.3d 1253, 1258
(10th Cir. 2002); Socop-Gonzalez v. INS, 272 F.3d 1176, 1188
(9th Cir. 2001) (en banc); Iavorski v. INS, 232 F.3d 124, 129-30
(2d Cir. 2000). (If it were jurisdictional, it would not be
subject to tolling. Stone v. INS, 514 U.S. 386, 405 (1995);
Nowak v. INS, 94 F.3d 390, 391 (7th Cir. 1996).) The govern-
ment argues that, even so, it is plain that Pervaiz waited too
long before filing the second motion to reopen to be able to
4 No. 04-2958
appeal to the doctrine of equitable tolling—so plain that the
Board’s failure to address the issue was a harmless error.
The ruling that she was challenging—the in absentia order
of removal—had been issued on January 24, 2003. The 180th
day after that was July 23, 2003, and she did not file the
second motion to reopen until April 15, 2004, which was
almost nine months later.
But the test for equitable tolling, both generally and in the
immigration context, is not the length of the delay in filing
the complaint or other pleading; it is whether the claimant
could reasonably have been expected to have filed earlier.
Williams v. Sims, 390 F.3d 958, 960 (7th Cir. 2004); Shropshear
v. Corporation Counsel, 275 F.3d 593, 595 (7th Cir. 2001);
Borges v. Gonzales, supra, at *6; Socop-Gonzalez v. INS, supra,
272 F.3d at 1193; Iavorski v. INS, supra, 232 F.3d at 134.
Bearing in mind the sheer injustice, at least as it would seem
to a layman, of the immigration judge’s denying a claim of
asylum merely because the claimant showed up four hours
late for a hearing, when it seems that the only reason for her
tardiness was that she hadn’t learned of the time change,
Pervaiz could reasonably expect that the first motion to
reopen would be granted. When on June 13, 2003, it was
denied, a claim for ineffective assistance of counsel arose;
and consistent with our earlier discussion, ineffective
assistance of counsel is a possible ground for relief from an
in absentia order of removal. Borges v. Gonzales, supra, at *7;
Asaba v. Ashcroft, 377 F.3d 9, 11 n. 4 (1st Cir. 2004); Lo v.
Ashcroft, 341 F.3d 934, 936-37 (9th Cir. 2003); In re Rivera-
Claros, 21 I. & N. Dec. 599, 607 (BIA 1996); In re Grijalva-
Barrera, 21 I. & N. Dec. 472, 473-74 (BIA 1996).
But to pursue this route required Pervaiz to find another
lawyer, who in turn had to research the facts and the law
before he could file a second motion to reopen. All this
should not have taken nine months. But bearing in mind
No. 04-2958 5
that Pervaiz is a foreigner who may, therefore, have more
than the average difficulty in negotiating the shoals of
American law, and that the second motion to reopen was
filed while the appeal from the denial of the first motion
was pending before the Board of Immigration Appeals and
could be and was consolidated with the earlier motion, so
that the delay in filing the second motion caused little or no
inconvenience, let alone prejudice, to anyone, we cannot say
as a matter of law that the Board could not find that the
deadline had been tolled, as has been found in other cases.
See, e.g., Borges v. Gonzales, supra, at *6; Singh v. Ashcroft, 367
F.3d 1182, 1185-86 (9th Cir. 2004); Riley v. INS, supra, 310 F.3d
at 1258; Lopez v. INS, supra, 184 F.3d at 1099-1100; Iavorski v.
INS, supra, 232 F.3d at 127.
A remand would be futile were it clear that Pervaiz’s
claim of ineffective assistance of counsel must fail. But it is
not. Her first lawyer led the immigration judge and Board
of Immigration Appeals into error by failing to distinguish
between the adequacy of notice of a hearing and the receipt of
the notice, an elementary distinction. As we explained in
Joshi v. Ashcroft, supra, 389 F.3d at 736, if the alien can prove
that the notice was not received by herself or her agent
(here, her lawyer), though duly mailed, she is entitled to
relief. See also 8 U.S.C. § 1229a(b)(5)(C)(ii); Gurung v. Ashcroft,
supra, 371 F.3d at 722; In re Grijalva, 21 I. & N. Dec. 27, 36-37
(BIA 1995). Pervaiz’s first lawyer failed to argue this. The
oversight, which is not contended to have had a tactical
purpose (though it might have—an alien who has no defense
to removal may hope by failing to show up at his hearing to
buy time by getting the hearing rescheduled on one ground
or another), could be thought ineffective assistance of
counsel. Cf. Strickland v. Washington, 466 U.S. 668, 689 (1984);
Cooper v. United States, 378 F.3d 638, 640-41 (7th Cir. 2004); De
6 No. 04-2958
Zavala v. Ashcroft, 385 F.3d 879, 864 (5th Cir. 2004). We do not
prejudge the issue, however.
The petition for review is granted and the case remanded
to the Board of Immigration Appeals for further proceed-
ings consistent with this opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-18-05