Patel, Sunita v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-3401, 04-4159, 05-1687
SUNITA PATEL, KAMARKANT PATEL,
PALLAVI PATEL, and KALPANA PATEL,
Petitioners,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petitions for Review from the
Board of Immigration Appeals.
Nos. A70 551 082, A70 551 086,
A70 551 085, and A70 551 084
____________
ARGUED OCTOBER 19, 2005,
SUBMITTED FEBRUARY 1, 2006Œ—DECIDED MARCH 30, 2006
____________
Œ
Because these petitions for review are related, the Court on its
own motion has consolidated them for disposition. Petitioner
Sunita Patel’s petition, docketed as Nos. 04-3401 and 04-4159,
was argued before this panel on October 19, 2005. On February 1,
2006, the petitions of Petitioners Kamarkant, Pallavi, and
Kalpana Patel were submitted and docketed as No. 05-1687. The
Court has concluded that oral argument is unnecessary in
the latter cases; those petitions are therefore submitted on the
briefs. See Fed. R. App. P. 34(a)(2).
2 Nos. 04-3401, 04-4159, 05-1687
Before MANION, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. These petitions present, in the
aggregate, the claims of four members of the Patel family
who are seeking asylum, withholding of deportation, and
relief under the Convention Against Torture (CAT). In
Nos. 04-3401 and 04-4159, Sunita Patel is petitioning for
review of two decisions of the Board of Immigration Appeals
(BIA): the first one denied her motion to reopen her asylum
proceedings, and the second one denied her motion to
reconsider the denial of the motion to reopen. In No. 05-
1687, Kamarkant Patel (Sunita’s father), his wife Pallavi
Patel, and his oldest daughter Kalpana Patel, petition for
review of the BIA’s decision denying their motions to reopen
their cases so that they might reapply for asylum, withhold-
ing of deportation, and relief under the CAT. All four argue,
in essence, that their experience with the immigration
system of this country has resembled nothing as much as
the bureaucracy in Franz Kafka’s Castle, where no answers
are ever consistent, contradictions abound, and frustration
is the only outcome. While we have some sympathy with
their plight, it is not entirely of the Board’s making.
Moreover, the relief they are seeking lies within the Board’s
discretion, and we cannot say that the Board abused that
discretion in any of these cases. We therefore deny the
petitions for review.
I
A. Initial Proceedings
Kamarkant Patel was born on June 12, 1953, in
Lichtenburg, South Africa; he is of Indian/Asian ancestry,
as are approximately 2.5% of the people in South Africa,
according to the CIA’s World Factbook. See http://www.
cia.gov/publications/factbook/geos/sf.html. Pallavi Patel,
Kamarkant’s wife, was born in India, but she later be-
came a naturalized South African citizen. The couple
Nos. 04-3401, 04-4159, 05-1687 3
have three daughters, all of whom were born in South
Africa: Kalpana, Minal, and Sunita. As members of the
Indian minority in that country, the family had been a
target of violence, persecution, and harassment from both
blacks and whites in apartheid South Africa. (South Africa
recognizes April 27, 1994, as its Freedom Day; not until
then was the apartheid regime at last officially ended. Id.)
When the grocery store by which the Patels made their
living was burned to the ground, they decided that they had
no choice but to flee. They entered the United States on
August 23, 1991, on visitors’ visas, and immediately
retained an attorney, Archana O’Chaney, to help them
pursue asylum claims.
With the assistance of counsel, Kamarkant filed his
asylum application on August 8, 1992, naming himself as
the primary applicant and his wife and three daughters
(then ages nine, 12, and 13) as derivative applicants.
Initially, the asylum officer at the Bureau of Human Rights
and Humanitarian Affairs of the Department of State
prepared an Assessment Sheet, in which he found the
Patels’ story to be credible and recommended that they be
granted asylum based on their race and nationality. No
final action took place, however, until October 1994, when
the former Immigration and Naturalization Service (INS)
issued a notice of intent to deny asylum. The issuing officer
also thought that Kamarkant’s testimony about the hard-
ships the family had suffered in South Africa was credible,
but he concluded that country conditions had changed so
radically since the family’s departure that it was unlikely
that their problems would continue if they returned.
Unfortunately, O’Chaney never informed them about this
turn of events, and thus they were deprived of the opportu-
nity to present additional evidence to the INS.
In the summer of 1996, the INS formally denied
Kamarkant’s application for asylum, and all five members
4 Nos. 04-3401, 04-4159, 05-1687
of the family were served individually with Orders To Show
Cause why they should not be deported. They responded
with a second joint asylum application in March 1997. That
led to a hearing on October 1, 1997, at which Kamarkant
testified. He stated that he had owned a grocery store in
South Africa. On several occasions, soldiers or other people
had accosted him on the street and stolen his groceries or
his money. His car was stolen and burned; when he re-
ported this incident to the police, they failed to create a
formal report about it. Kamarkant admitted that the police
had not harmed, bothered, or harassed him, but that on
numerous occasions soldiers had entered his store and
taken groceries without paying. In June 1991, the store was
burned “by the natives” (as he put it). It was not safe for
him to drive his children to school, he reported, because
sometimes “natives” would get into the car with him and
make him give them rides. He and his family were also
subjected to threats, including one threat to rape Sunita,
then five years old.
At the conclusion of this hearing, the Immigration Judge
(IJ) denied the petition for asylum and withholding of
deportation, but he granted the family voluntary departure.
At the family’s request, O’Chaney filed a timely notice of
appeal to the BIA from that decision. That notice indicated
that they would be filing a separate brief in support of their
appeal, but no such brief was ever filed. Years later, on
March 8, 2002, the BIA summarily dismissed the appeal for
failure to file a separate brief or reasonably to explain the
absence of the brief. The Board did, however, confirm the
IJ’s decision to grant the family voluntary departure. Once
again, the family never received notice of the BIA’s decision,
either from O’Chaney or otherwise. Consequently, they
failed to depart within the permitted time period and thus
violated the terms of the Board’s order. In June 2002, the
BIA issued a final order of deportation in absentia.
Nos. 04-3401, 04-4159, 05-1687 5
B. Minal Patel
At this point, the paths of the various family members
diverged. We begin with the one family member not in-
volved in these petitions, Minal. Minal married a United
States citizen in July 1999 and applied a few months
later for an adjustment of status based on her husband’s
immediate-relative petition. Those applications also
languished for a couple of years, but in August 2002 Minal
received notice that her request for adjustment of status
could not be adjudicated because she was under an order of
deportation. At that point, Minal sought new counsel and
filed a request under the Freedom of Information
Act (FOIA) for a copy of her immigration file. The gov-
ernment apparently responded promptly and sent the file to
her; upon reviewing it, she learned that the order of
deportation had indeed been entered when her family’s
appeal was dismissed in June 2002. In November 2002,
Minal moved to reopen her asylum proceedings, alleging
ineffective assistance of counsel. She also renewed her
request for adjustment of status. She was successful: the
BIA ruled that she was entitled to equitable tolling of the
time limit for motions to reopen and it reopened her case. In
February 2004, she was granted adjustment of status.
C. Sunita Patel
In the meantime, Sunita had also married a United
States citizen, in February 2002; she applied within a
month to have her status adjusted. Despite the action on
Minal’s similar application in late 2002, the agency did
not inform Sunita at that time that she too could not pursue
adjustment of status while she was under the June 2002
order of deportation. Only in May 2004, during an interview
with immigration officers in connection with
her application, was she told that the application could
not be processed because of the order of deportation. Around
6 Nos. 04-3401, 04-4159, 05-1687
the same time, she received a letter to the same effect from
the agency. Sunita retained the same lawyer who had
succeeded in Minal’s case, and filed a motion to reopen her
own case within 30 days of the government’s letter. Sunita’s
motion was essentially identical to Minal’s, and also relied
on ineffective assistance of counsel as the basis for raising
an independent asylum claim. Underscoring the relatedness
of the two cases, Sunita attached a number of documents to
her motion that had been submitted in Minal’s case,
including affidavits from Kamarkant and Minal attesting to
the negligence of the former lawyer. In July 2004, Sunita
received a notice that her husband’s immediate-relative
petition had been approved; she promptly amended her
motion to reopen to have that fact taken into consideration.
In contrast to Minal’s success in her petition to reopen,
Sunita met with failure. The Board first observed that
she had failed to satisfy the time limit for motions to reopen
found in 8 C.F.R. § 1003.2(c)(2), based on 8 U.S.C.
§ 1229a(c)(7)(C)(ii). It concluded that equitable tolling
was not appropriate for Sunita, because it inferred from
all the facts that Sunita had been aware since the time
Minal received the response to her FOIA request that
she was under an order of deportation. Unlike Minal,
who acted promptly at that point, Sunita had waited nearly
two years before filing her own motion to reopen—an action
the Board deemed inconsistent with the exercise of due
diligence. This is the first order Sunita has asked us to
review, in No. 04-3401.
In addition to petitioning this court for review, Sunita
also filed a motion to reconsider with the Board. In that
motion, she argued that there was no evidence that any-
one in the family except Minal had known of the final
deportation order, and that, in any case, she had no reason
to believe that it covered her, because the documents
obtained through the FOIA request related only to Minal.
She also asserted that she had been so busy working at the
Nos. 04-3401, 04-4159, 05-1687 7
relevant time that she “never had the time to speak to
my parents, let alone to my sister Minal” and that she
“never knew anything about what was going on with my
sister.”
The Board was unpersuaded, and in November 2004
it denied Sunita’s motion to reconsider the refusal to
reopen. It pointed to statements in a 2002 affidavit from
Minal, created for her own case, indicating that Minal knew
that the March 2002 order affected the entire family and
that it was reasonable to conclude that she had shared that
information with her father. The Board also noted that
Sunita and her husband were living with Kamarkant
during the period when former counsel’s ineffective assis-
tance was discovered. Sunita’s petition for review of this
decision is No. 04-4159.
D. Kamarkant, Pallavi, and Kalpana Patel
The other three members of the Patel family submitted
their motion to reopen to the Board on December 16, 2004.
They argued first that the lateness of their filing should
be excused because of the ineffectiveness of their orig-
inal lawyer. In addition, they asserted that country condi-
tions had changed for the worse for the Indian minority in
South Africa since the 1997 hearing before the IJ. Finally,
they claimed that Pallavi had become stateless, as a result
of the length of time she had been absent from South Africa
and her earlier decision to relinquish her Indian citizenship
when she became a naturalized South African citizen.
The Patels insisted, in this petition, that they did not
realize that Minal’s problems extended to the rest of them.
In part, they relied on the advice that O’Chaney gave them
when Minal received her first letter, to the effect that the
letter was wrong and there could not have been an in
absentia order of deportation entered. With respect to
country conditions in post-apartheid South Africa, they
8 Nos. 04-3401, 04-4159, 05-1687
submitted news articles reporting that the Indian
minority felt marginalized and excluded from oppor-
tunities that were being reserved for the black majority.
Other articles, as well as the State Department Report on
Country Conditions issued February 24, 2004, described
increasing violence in the country as a whole.
The Board considered each of these points, but in the
end it rejected the motion to reopen. It first pointed out that
the motion was untimely, as it was not filed within 90 days
of the Board’s March 8, 2002, decision. Next, it held that
equitable tolling was not appropriate, because the Patels
had not acted with due diligence after they discovered that
the Board had acted in March 2002. As in Sunita’s case, the
Board relied on the affidavit from Minal recounting that she
discussed with her father all of the documents she received
in response to her FOIA request. Indeed, Minal’s affidavit
said at one point that “I and my family lost our right to
appeal our cases.” The Board thus found that Kamarkant,
and by extension Pallavi and Kalpana, knew about the
March 2002 decision no later than October of 2002, more
than two years before they filed their motion to reopen.
Turning to country conditions in South Africa, the Board
noted that the evidence the Patels submitted described
incidents of general strife, not persecution against
Indians. In fact, the Board pointed out, “the respondents
submitted an article explaining how the Indian com-
munity in South Africa is playing a major role in the post-
apartheid economy.” On this record, the Board concluded,
there was no reason to think that changed circumstances
would operate in the Patels’ favor. Finally, the Board
held that Pallavi’s alleged stateless status was not a reason
for granting relief. It also pointed out that the fax Pallavi
had submitted to show that she had lost her South African
citizenship went on to say that if she complied “with section
13(3)(a)(1) of the permit for permanent residence or exemp-
tion thereof,” she could apply for “resumption of [her] South
Nos. 04-3401, 04-4159, 05-1687 9
African citizenship.” Case No. 05-1687 is the combined
petition for review on behalf of Kamarkant, Pallavi, and
Kalpana.
II
We have before us two motions to reopen and one mo-
tion to reconsider. Although these two kinds of motions
are similar, we have described their distinct functions
as follows:
A motion to reconsider asks that a decision be reexam-
ined in light of additional legal arguments, a change
of law, or an argument that was overlooked earlier,
while a motion to reopen asks for reconsideration on the
basis of facts or evidence not available at the time of the
original decision, such as changed country conditions.
So whereas a motion to reconsider rehashes arguments
that should have been presented the first time around,
a motion to reopen calls attention to potentially vital
information that could not have been presented earlier.
Kurzban’s Immigration Law Sourcebook 738, 744 (8th
ed. 2002).
Patel v. Ashcroft, 378 F.3d 610, 612 (7th Cir. 2004). The
standard of review, however, is identical: we review both
kinds of motion only for abuse of discretion. Hernandez-
Baena v. Gonzales, 417 F.3d 720, 724 (7th Cir. 2005); Singh
v. Gonzales, 404 F.3d 1024, 1027 (7th Cir. 2005). We
address Sunita’s two petitions first, and then the peti-
tion for the remainder of the family.
Sunita first argues that the Board erred as a matter of
law in applying the due diligence standard to her petition
to reopen. Because her claim is based ultimately on ineffec-
tive assistance of counsel, she asserts that the Board should
have looked instead to the various factors spelled out in In
re Lozada, 19 I. & N. Dec. 637 (BIA 1988), notably including
10 Nos. 04-3401, 04-4159, 05-1687
prejudice. But this argument confuses the substantive
criteria for succeeding on an ineffective assistance of
counsel claim with the procedural rules that must be
satisfied, including the rules governing the time for filing
various motions. The Board would indeed turn immediately
to the Lozada test if the motion to reopen were filed within
the 90 days permitted by the regulations. With an untimely
motion, in contrast, the alien must first show that her
situation warrants equitable tolling of the time limits, and
equitable tolling in turn requires a showing of due dili-
gence. See Ray v. Gonzales, 439 F.3d 582, 589 (9th Cir.
2006); Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1099-
1100 (9th Cir. 2005); Pervaiz v. Gonzales, 405 F.3d 488, 489-
90 (7th Cir. 2005); Chen v. Gonzales, 437 F.3d 267, 269 (2d
Cir. 2006); Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000).
Next, Sunita takes issue with the Board’s conclusion that
she failed to demonstrate due diligence. This amounts to a
factual disagreement with the inference the Board drew
from Minal’s affidavit and the other circumstances sur-
rounding the delivery of the FOIA documents. On this
record, we cannot say that the Board abused its discre-
tion when it concluded that the circumstantial evidence
showed that Sunita knew that the March 2002 order had
been issued, and that it covered the entire family. More-
over, even if Sunita had known only that Minal was subject
to a deportation order resulting from the proceeding that
had covered all five of them, this would have been enough
to trigger a duty of inquiry on her part. “Equitable tolling
requires a court to consider whether a reasonable person in
the plaintiff’s position would have been aware of the
possibility that he had suffered” an injury. Beamon v.
Marshall & Ilsley Trust Co., 411 F.3d 854, 860-61 (7th Cir.
2005) (emphasis in original). Contrary to Sunita’s position,
she did not have to acquire actual knowledge of all of the
consequences of the Board’s final order before the clock
could start to run for equitable tolling purposes.
Nos. 04-3401, 04-4159, 05-1687 11
Other arguments Sunita presents concern the relation
between her application for adjustment of status and her
action (or lack thereof) after the final order of deporta-
tion. It is true, to her credit, that she was not trying to
avoid the attention of the immigration authorities. To the
contrary, within a month of her February 2002 mar-
riage—that is to say, either before or contemporaneously
with the March 2002 order of deportation—she applied
for adjustment of status based on her husband’s immediate-
relative petition. We find it disturbing when the right hand
within the immigration bureaucracy apparently does not
know what the left hand is doing. Had anyone noticed the
coincidence of these two proceedings, Sunita could have
been notified right away that the adjustment application
could not be adjudicated because of the deportation order;
she could have filed for reopening within the permitted 90-
day period; and her fate might have paralleled Minal’s.
Notwithstanding the circumstances of her adjustment
application, however, which were known to the Board, the
Board was not required to find that the government was
estopped from deporting her or that its delay in connecting
the two proceedings together violated her due process
rights. Her case is not the same as Singh v. Reno, 182 F.3d
504 (7th Cir. 1999), in which we held that the INS’s delay
of more than six years led to a violation of the petitioner’s
due process rights. There, the applicable law had changed
during the period of delay, and we found “crucial signifi-
cance” in the petitioner’s diligent pursuit of relief. Id.
at 510-11.
Last, Sunita argues that the Board should have concluded
that changed country conditions exempted her from the
time limits ordinarily applicable to motions to reopen, by
virtue of 8 U.S.C. § 1229a(c)(7)(C)(ii). The government
responds that she failed to raise this point adequately
before the Board. Whether or not this is so, her arguments
before this court are insufficient to bring this statute into
12 Nos. 04-3401, 04-4159, 05-1687
play. She needed to show, as her other family members
attempted to do in their petition, that conditions in South
Africa had changed for persons of Indian ancestry between
the time of the Board’s decision and the motion to reopen.
See Sivaainkaran v. INS, 972 F.2d 161, 166 (7th Cir. 1992).
Sunita did not do so; she focused instead on the immigra-
tion officer’s determination in 1994 that conditions in the
country had changed so much since the favorable prelimi-
nary determination that the family’s claim had to be denied.
Although she states, in a conclusory fashion, that conditions
are just as bad for Indians today in South Africa, she
presents no evidence strong enough to compel a finding that
the Board’s decision represents an abuse of discretion.
We conclude, therefore, that the Board acted within
its authority when it concluded first that Sunita’s motion to
reopen had to be dismissed as untimely, and second that
her motion to reconsider that decision failed to demonstrate
that the Board had erred in refusing to reopen the case.
Our conclusion with respect to the combined petition filed
by Kamarkant, Pallavi, and Kalpana Patel is the same. We
have already reviewed the important points contained in
the Board’s order in their cases. The question before us,
once again, is not whether we as an initial matter might
have found equitable reasons to relieve these three individ-
uals from the time limits for filing a motion to reopen; it is
whether the Board abused its discretion in refusing to do so.
The evidence with respect to the time when Kamarkant and
the rest of the family learned of the March 2002 order of
deportation is the same as the evidence in Sunita’s case.
Whether the Board thought that the outer limit was
September or October of 2002 is immaterial, given the fact
that these three petitioners did not file their motion to
reopen until December 2004. Once one accepts the Board’s
factual finding that the family was aware of its status as of
the fall of 2002—a finding that is a permissible one on this
record, even if not the only possible one—the further
Nos. 04-3401, 04-4159, 05-1687 13
conclusion that the Board drew of lack of diligence follows
easily. The Board’s decision that the record did not show the
kind of changed country conditions for South Africa that
would relieve petitioners of the time constraints is also a
reasonable one.
Finally, although counsel argues strongly that there is no
guarantee that South Africa will accept Pallavi, since
(counsel asserts) no country right now will issue her a
passport, the Board’s primary ruling on this point was
that statelessness is not a reason by itself for granting
asylum or withholding of removal. At this point, the
Department of Homeland Security has the burden of
arranging for Pallavi’s transportation back to South Africa,
or to any other country that is willing to accept her. As the
Supreme Court recently held, advance word from the
country of destination that it will admit the individual
is not strictly required by the statute. See Jama v. Im-
migration & Customs Enforcement, 543 U.S. 335 (2005).
We have considered the other arguments that counsel has
presented so vigorously on behalf of the various members of
the Patel family, but we find that none of them suffices to
show that the Board abused its discretion in these matters.
We therefore DENY all three petitions for review.
14 Nos. 04-3401, 04-4159, 05-1687
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-30-06