Gaberov, Simeon v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1417
SIMEON GABEROV,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A71-468-783
____________
ARGUED NOVEMBER 27, 2007—DECIDED FEBRUARY 19, 2008
____________
Before MANION, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. Simeon Gaberov applied for
asylum based on his alleged persecution by the com-
munist party in his native Bulgaria. The immigration
judge (IJ) denied the application, and Gaberov timely
appealed. The Board of Immigration Appeals (BIA) af-
firmed the IJ’s decision without opinion and claims to have
mailed an appropriate notice to Gaberov’s attor-
ney. Gaberov, however, asserts that neither he nor his
attorney ever received a decision regarding his case. The
only communication they received was a letter addressed
to Gaberov’s attorney containing a decision for an unre-
lated individual, Elena Endriuliene. Years later, Gaberov
received a “bag and baggage” letter, instructing him to
2 No. 07-1417
report for deportation. He subsequently filed a motion to
reopen, alleging the foregoing facts and offering the
Endriuliene decision as evidence that he never received
proper notice. The BIA denied the motion as untimely.
Gaberov then filed a motion to reconsider, which the
BIA also denied. He now petitions for review.
Gaberov, a 67-year-old native and citizen of Bulgaria,
was admitted to the United States in June 1990 as a
nonimmigrant visitor for pleasure and was authorized
to remain in the country for 6 months. In September, he
filed an application for asylum with the former Immigra-
tion and Naturalization Service (INS),1 claiming that
he had suffered and would continue to suffer persecution
by the communist party in Bulgaria. According to Gaberov,
his persecution began while he worked as a mechanic in
a government-owned factory in Blagoevgrad. Gaberov
and a coworker, Ivan Svetetsov, established a branch of
a labor union at their place of employment to oppose the
mistreatment of workers. As a result, the two men were
transferred to separate cities and ultimately fired.
Svetetsov successfully brought legal action against his
former employer but was found dead by hanging soon
after. Upon learning of Svetetsov’s apparent murder,
Gaberov left for the United States.
The INS declined to grant Gaberov’s application for
asylum in January 1996.2 At that time, the INS filed an
order to show cause (OSC) with the immigration court
1
On March 1, 2003, the INS ceased to exist as an agency within
the Department of Justice. Its enforcement functions were
transferred to the Department of Homeland Security’s (DHS)
Immigration and Customs Enforcement (ICE). Its service
functions were transferred to DHS’s Citizenship and Immigra-
tion Services (CIS).
2
We are not told why it took the INS more than 5 years to
address Gaberov’s application.
No. 07-1417 3
in Chicago, stating that Gaberov was subject to deporta-
tion for having remained in the United States beyond
the time authorized. In May, Gaberov appeared before
the IJ without counsel, and the hearing was rescheduled
to enable Gaberov to find representation. In September,
Gaberov appeared with his attorney, Alexander Vrbanoff,
and admitted the allegations in the OSC.
In July 1998, the IJ issued a decision denying Gaberov’s
application for asylum and withholding of deportation
but granting him voluntary departure. Gaberov filed a
timely notice of appeal with the BIA. While his appeal was
pending, Gaberov retained new counsel because his
former attorney was suspended from practicing law.
Gaberov’s new attorney, Tzvetelina Boynovska, filed a
notice of entry of appearance with the BIA and re-
quested that all materials be mailed to her office.
On June 13, 2002, the BIA affirmed without opinion the
IJ’s decision. The cover letter for the BIA’s decision
indicates that it was mailed on that date to the ad-
dress provided by Boynovska. According to Gaberov,
however, neither he nor his counsel ever received notice
of the decision. The only communication they received
from the BIA was a cover letter addressed to Boynovska
dated June 13, 2002, along with the decision in a case
involving an unrelated individual, Elena Endriuliene.
Gaberov now asserts that, upon receiving the notice,
Boynovska contacted the BIA but was informed that
Gaberov’s appeal was still pending. He also claims that
Boynovska and he went to the Chicago CIS office shortly
thereafter. There, they were assured that Gaberov could
not be deported because the decision he received did not
refer to his name or the number of his case. Thus, Gaberov
continued to wait for his decision.
In December 2002, Gaberov married Stefka Milkova,
a United States citizen with whom he began a romantic
4 No. 07-1417
relationship in 1997. Milkova subsequently filed an I-130
visa petition on behalf of Gaberov. In June 2005, Gaberov
and Milkova appeared before CIS Officer Lisa Ubaldo
for adjudication of the petition. During the interview,
Gaberov presented the notice he received from the BIA.
According to Gaberov, Ubaldo informed the couple that,
although it appeared that the BIA had issued a decision
in Gaberov’s case, it was not binding because he received
insufficient notice. As a result, Ubaldo did not execute the
final order of removal against Gaberov. Instead, she
approved the I-130 petition, finding that Milkova and
Gaberov’s marriage was bona fide.
Later that month, Gaberov received a “bag and baggage”
letter from the ICE, advising him to appear at their
Chicago office completely ready for deportation on Septem-
ber 8. This came as quite a surprise to Gaberov after
his conversation with Ubaldo. So, he filed an I-246 ap-
plication to stay his deportation. Nevertheless, Gaberov
followed instructions and appeared at the Chicago office
twice for his “bag and baggage” appointments. On the
second occasion, Gaberov’s I-246 application was
granted because CIS officers determined that he was not
properly notified of the BIA’s decision.
In April 2006, Gaberov filed a motion to reopen with
the BIA, alleging that he was now eligible for an adjust-
ment of status based on his approved visa application.
Gaberov argued that he never received notice of a decision
in his case from the BIA and attached the Endriuliene
decision as evidence. Gaberov also asked the BIA to
exercise its discretion and grant his motion because of the
favorable factors present in his case. Specifically,
Gaberov’s wife suffers with a permanent back injury
and needs his care. He also has a close relationship to
his son, Vasil, a lawfully permanent resident, Vasil’s
wife, Stella, and their citizen children, Rosemary and
Simon. During his 17 years in the United States, Gaberov
No. 07-1417 5
has run his own construction business, paid his taxes,
and never had any adverse contact with law enforce-
ment. The BIA denied the motion to reopen as untimely,
briefly citing to 8 C.F.R. § 1003.2(c)(2) and making no
mention of the defective notice.
Gaberov subsequently filed a timely motion to recon-
sider, realleging nonreceipt of the BIA’s June 13, 2002,
decision and the special circumstances of his case. He
also set forth facts relating to his visa application and
Officer Ubaldo’s determination that he had been pro-
vided with insufficient notice. Gaberov offered several
documents as evidence, including the approved I-130 visa
application and the Endriuliene decision. The BIA denied
the motion to reconsider, concluding that Gaberov “was
on notice in 2002 that a Board decision had been issued
in his case.” Despite Gaberov’s submission of the
Endriuliene decision and cover letter, the BIA found that
“[t]here is no affidavit or other evidence from former
counsel disclaiming receipt of the Board’s decision.” The
BIA also declined to equitably toll the filing period be-
cause Gaberov failed to establish due diligence in ascer-
taining the status of his appeal.
We review the BIA’s denial of a motion to reconsider
for an abuse of discretion. Laboski v. Ashcroft, 387 F.3d
628, 631 (7th Cir. 2004). The BIA’s legal findings are
reviewed de novo, but we give deference to the BIA’s
construction of the statutes it administers. Marquez v.
I.N.S., 105 F.3d 374, 378 (7th Cir. 1997). Gaberov argues
that the BIA committed one of two errors: (1) determining
that his motion to reopen was untimely filed, or
(2) declining to equitably toll the time limitations for
filing a motion to reopen.
The first issue is whether the BIA correctly concluded
that Gaberov’s motion to reopen was untimely filed. The
parties agree that a motion to reopen must ordinarily
6 No. 07-1417
be filed within 90 days of the date on which the final
administrative decision was rendered in the proceedings
sought to be reopened. See 8 C.F.R. § 1003.2(c)(2). Because
Gaberov did not file his motion to reopen until April
2006—almost 4 years after the BIA’s June 2002 deci-
sion—it will be untimely unless an exception applies. See
id. § 1003.2(c)(3).
Gaberov argues that his case falls under the excep-
tion for a motion to reopen “[f]iled pursuant to the provi-
sions of § 1003.23(b)(4)(iii)(A)(2).” Id. § 1003.2(c)(3)(i). We
disagree. That section, titled “Order entered in absentia
in deportation or exclusion proceedings,” states that
“[a]n order entered in absentia in deportation proceedings
may be rescinded only upon a motion to reopen filed . . .
[a]t any time if the alien demonstrates that he or she did
not receive notice[.]” Although there is strong evidence
that Gaberov did not receive notice, the exception does not
apply because he did not seek to reopen an in absentia
deportation order. In fact, Gaberov does not allege that
he ever received an in absentia order. Rather, he argues
that the exception applies to all motions to reopen. His
attempt to construe the statute differently is not persua-
sive. The plain language of the provision indicates that
it only applies to motions to reopen in absentia deporta-
tion orders. Thus, the BIA correctly determined that
Gaberov’s motion to reopen was untimely.
The second issue is whether the BIA erred when it
declined to equitably toll the time limitations for filing
a motion to reopen. The 90-day deadline is a statute of
limitations and therefore subject to equitable tolling.
Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005). To
obtain relief, a petitioner must first show that his situation
warrants equitable tolling, which, in turn, requires
a showing of due diligence. Patel v. Gonzales, 442 F.3d
1011, 1016 (7th Cir. 2006). The test for equitable tolling
is not the length of the delay but “whether the claimant
No. 07-1417 7
could reasonably have been expected to have filed earlier.”
Pervaiz, 405 F.3d at 490.
Gaberov argues that his situation warrants equitable
tolling because the BIA never sent him notice of its
June 13, 2002, decision. Federal regulations provide that
“[t]he decision of the Board . . . shall be served upon the
alien or party affected.” 8 C.F.R. § 1003.1(f). “Service” is
defined as “physically presenting or mailing a document
to the appropriate party or parties.” Id. § 1003.13. In his
motions to reopen and reconsider, Gaberov alleged that
neither he nor his attorney received a decision regarding
his case. As evidence, Gaberov submitted the Endriuliene
decision along with the cover letter addressed to his
counsel.
When it denied Gaberov’s motion to reconsider, how-
ever, the BIA gave only cursory mention to these docu-
ments. Although it conceded that Gaberov’s evidence, “if
true, could be construed as demonstrating a violation of
the regulation,” it found that Gaberov’s failure to sub-
mit affidavits in support of his allegations was essen-
tially fatal to his claim. On this point, the BIA relied
heavily on a Ninth Circuit case, Singh v. Gonzales, 469
F.3d 863 (9th Cir. 2006). There, the court denied review
even though Singh and his attorney attached affidavits
to the motion, swearing that they had never received
the BIA’s decision. That opinion, however, has been
withdrawn and a superseding opinion, Singh v. Gonzales,
494 F.3d 1170 (9th Cir. 2007), has been filed.
In the superseding opinion, the Ninth Circuit granted
Singh’s petition for review. It found that “[t]he BIA is
obligated to consider and address in its entirety the
evidence submitted by a petitioner, and where its fail-
ure to do so could have affected its decision, remand is
appropriate.” Id. at 1172 (internal citation omitted). The
court also stated that, while a properly addressed cover
8 No. 07-1417
letter creates a presumption of mailing on the date of the
cover letter, such a presumption can be rebutted by
sufficient evidence—there, by affidavits of nonreceipt by
both Singh and his counsel. In its discussion, the court
distinguished cases where the sole evidence before the
BIA was the properly addressed cover letter. Thus, Singh
does not support the BIA’s finding that Gaberov is ineligi-
ble for equitable relief due to his failure to submit af-
fidavits in addition to other evidence.
In fact, the regulations state that a motion to reopen
proceedings before the BIA “shall be supported by affida-
vits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1).3
Here, Gaberov alleged misdelivery and attached the
Endriuliene decision and cover letter as evidence.
Gaberov’s possession of the decision for an unrelated
individual along with a cover letter addressed to his
attorney is strong evidence that the BIA violated the
notice regulations. Admittedly, his case would have been
even stronger if he had also submitted affidavits, but
his failure to do so was not fatal to his claim. Cf. Laboski v.
Ashcroft, 387 F.3d 628 (7th Cir. 2004) (finding that the
BIA did not abuse its discretion in determining that the
petitioner failed to timely appeal where he submitted no
evidence (an affidavit or a postmark) to support his claim
that the decision was not mailed on the date indicated on
the cover letter).
The BIA also found that Gaberov did not show due
diligence, again relying on the superseded Singh decision
as well as two of our decisions, Patel v. Gonzales, 442 F.3d
1011 (7th Cir. 2006), and Nowak v. I.N.S., 94 F.3d 390 (7th
Cir. 1996). The language from the Singh decision is
3
In its brief, the government directed us to a different statute,
8 C.F.R. § 1003.23(b)(3), which actually refers to proceedings
before the immigration court, not the BIA.
No. 07-1417 9
absent from its superseding opinion, so we will not dis-
cuss it. As for our two cases, we think they are distin-
guishable. In Patel, we denied a petition for review
where a petitioner filed a motion to reopen a year and a
half after her sister received notice that her entire family
was under a final order of deportation. Here, however,
the decision Gaberov received pertained to a completely
unrelated individual. Thus, it was certainly not clear that
Gaberov was “on notice” in June 2002 that a decision had
been rendered in his case. In Nowak, we stated that
“aliens who distrust the Postal Service must check with
the Board every so often” to determine whether it has
issued a final decision. Id. at 391. There, however, we
were analyzing a “jurisdictional” rule, which is not sub-
ject to equitable tolling.
The BIA emphasized the length of the delay in finding
no due diligence. Notably, it found that Gaberov “waited
almost 4 years to hold this Board accountable for an
alleged procedural error of which he had notice in 2002
and which could have been remedied in a timely fashion.”
The record does not come close to supporting this finding.
Gaberov alleges that immediately upon receiving the
Endriuliene decision he contacted the BIA and was told
that his appeal was still pending. He also asserts that
he and his attorney went to the Chicago CIS office where
they were assured that Gaberov could not be deported
because the decision he received did not refer to his
name or case number.
Even discounting these allegations, Gaberov presented
other evidence of due diligence. In particular, he detailed
his effort to clarify the relevance of the notice by present-
ing it to a DHS officer during his visa interview. At that
time, the interviewing officer informed Gaberov that,
although it appeared that the BIA had issued a decision
in his case, it was not binding because he received insuf-
ficient notice. Consequently, the officer did not execute
10 No. 07-1417
the final order of removal against Gaberov and approved
his I-130 application, which Gaberov submitted as evi-
dence. Gaberov also claimed that he presented the notice
to DHS officers at his “bag and baggage” appointment.
Because those officers determined that Gaberov was
entitled to relief, they granted his I-246 application and
did not deport him.
The BIA rejected this evidence in a footnote, stating
that “[t]he alleged actions of the DHS officers are irrele-
vant to the instant inquiry.” We disagree. First, these
events show that Gaberov was acting with due diligence
in trying to ascertain the status of his claim and the
effect of the notice. Second, the events support a claim
for equitable tolling because they explain why Gaberov
did not file a motion to reopen sooner. His reliance on the
DHS officers’ (erroneous) assurances that the notice he
received was not binding was reasonable.4 Gaberov does
not allege that the officers deliberately lied to him, but
this is unnecessary. Unlike with equitable estoppel, the
opposing party’s conduct need not rise to the level of
“affirmative misconduct” for an equitable tolling theory
to prevail. Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184-
85 (9th Cir. 2001).
At oral argument, the government stressed that, what-
ever happened previously, Gaberov waited too long
(9 months) after receiving his “bag and baggage” letter to
file his motion to reopen. First, we note that Gaberov
initially accepted his fate and appeared in good faith for
deportation in September. Only after he was told that
he would not be deported could he realistically have
4
We can hardly fault Gaberov for failing to understand that
“[v]isa petitions are adjudicated regardless of the finality of [the
BIA’s] order, and [the BIA] has no jurisdiction to consider the
discretion of the DHS as to its enforcement policies.”
No. 07-1417 11
been expected to file a motion to reopen. This makes the
delay 7 months. Gaberov argued that he needed this
time to find another lawyer and to allow that lawyer to
investigate. In Pervaiz, we noted that finding another
lawyer, who, in turn, had to research the facts and law
before filing a motion, should not take 9 months. However,
we went on to recognize that the petitioner was “a for-
eigner who may, therefore, have more than the average
difficulty in negotiating the shoals of American law.”
Pervaiz, 405 F.3d at 491. We believe these words to be
equally applicable to our case.
Gaberov came to the United States as an approved
visitor and filed an application for asylum. When his
application was finally denied 8 years later, he timely
appealed and waited for his decision. More than 3 years
after that, Gaberov received a decision for a completely
unrelated individual. He attempted to ascertain its
relevance and was told by DHS officers that his appeal was
still pending. Gaberov again attempted to determine the
meaning of the defective notice but was told by DHS
officers that it was not binding on him and that he could
not be deported. When he received a “bag and baggage”
letter, Gaberov was shocked and saddened that he would
have to leave his wife, children, and grandchildren, but he
dutifully reported for deportation. Instead of being de-
ported, however, he was told by DHS officers that the
faulty notice entitled him to relief. Gaberov then hired an
attorney and filed a motion to reopen, attaching evid-
ence that he received inadequate notice and could not
reasonably have been expected to have filed earlier.
These facts warrant equitable tolling, so Gaberov’s
motion to reopen should have been granted. The BIA has
authority to reissue a decision if notice miscarries,
Firmansjah v. Ashcroft, 347 F.3d 625 (7th Cir. 2003),
which would allow Gaberov to pursue a status adjust-
12 No. 07-1417
ment. The BIA might consider granting such equitable
relief on remand.
For the foregoing reasons, we GRANT the petition for
review, REVERSE the judgment of the BIA, and REMAND
for further proceedings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-19-08