Albillo-De Leon v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDELFO ALBILLO-DE LEON, 
Petitioner, No. 02-70246
v.
 Agency No.
A29-141-465
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 8, 2005—Pasadena, California
Filed June 8, 2005
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
and Stephen S. Trott, Circuit Judges.
Opinion by Judge Pregerson
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
6601
ALBILLO-DELEON v. GONZALES 6603
COUNSEL
Adrienne Ehrhardt, Snell & Wilmer, LLP, Tucson, Arizona,
for the petitioner.
6604 ALBILLO-DELEON v. GONZALES
Jason S. Patil (argued) and Shelley R. Goad (briefed), Office
of Immigration Litigation, Civil Division, Washington, D.C.,
for the respondent.
OPINION
PREGERSON, Circuit Judge:
An Immigration Judge (“IJ”) dismissed Petitioner Edelfo
Albillo-DeLeon’s motion to reopen his deportation proceed-
ings as untimely. The Board of Immigration Appeals (“BIA”)
affirmed without opinion. We have jurisdiction under 8
U.S.C. § 1252. For the reasons set forth below, we grant
Albillo-DeLeon’s petition and remand to the BIA for further
proceedings.
I. Factual and Procedural Background
Albillo-DeLeon, a native and citizen of Guatemala, entered
the United States without inspection on February 29, 1988.
He has lived continuously in the United States for the last sev-
enteen years. On May 3, 1988, shortly after arriving in the
United States, Albillo-DeLeon applied for asylum. On April
3, 1989, the Immigration and Naturalization Service (“INS”)1
issued Albillo-DeLeon an Order to Show Cause, charging that
he was deportable because he entered the United States with-
out inspection. Albillo-DeLeon appeared at a deportation
hearing and conceded deportability.
At the deportation hearing, Albillo-DeLeon sought asylum,
withholding of deportation, and voluntary departure. On
1
The INS ceased to exist on March 1, 2003, when its functions were
transferred to the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. However, we
refer to the agency as the INS here because the proceedings in this case
were instigated before the transfer.
ALBILLO-DELEON v. GONZALES 6605
November 17, 1989, the IJ denied Albillo-DeLeon’s applica-
tion for asylum and withholding of deportation but granted his
request for voluntary departure. Albillo-DeLeon appealed this
decision to the BIA. The BIA dismissed his appeal without
opinion.
A. Implementation of NACARA
On November 19, 1997, Congress passed the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”),
Pub. L. No. 105-100, 111 Stat. 2160 (1997), amended by Pub.
L. No. 105-139, 111 Stat. 2644 (1997). NACARA established
special rules to permit certain classes of aliens, including
nationals of Guatemala, to apply for “Special Rule Cancella-
tion.” Special Rule Cancellation allows designated aliens to
qualify for cancellation under the more lenient suspension of
deportation standard that existed before the passage of the
Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996). See
Munoz v. Ashcroft, 339 F.3d 950, 955-56 (9th Cir. 2003).
1. Filing a Motion to Reopen Under § 203(c)
NACARA section 203(c) allows an alien one opportunity
to file a petition to reopen his or her deportation or removal
proceedings to obtain cancellation of removal. A motion to
reopen will not be granted unless an alien can demonstrate
prima facie eligibility for relief under NACARA. See
Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003). An alien
can make such a showing if he or she has complied with sec-
tion 203(a)’s filing deadlines, is a native of one of the coun-
tries listed in NACARA, has lived continuously in the United
States for at least ten years, has not been convicted of any
crimes, is a person of good moral character, and can demon-
strate extreme hardship if forced to return to his or her native
country.2 See NACARA §§ 203(a),(b), and (c); see also 8
2
Section 203(b) provides that an alien may establish eligibility for can-
cellation of removal if he or she —
6606 ALBILLO-DELEON v. GONZALES
C.F.R. § 1003.43(b) (2004). Such a showing need not be con-
clusive but need suggest only that it would be “worthwhile”
to reopen proceedings. Ordonez, 345 F.3d at 785.
2. Deadline for Filing a Motion to Reopen under
§ 203(c)
Section 203(c) does not identify by date the deadline for fil-
ing a motion to reopen deportation or removal proceedings.
Instead, the statute states:
The Attorney General shall designate a specific time
period in which all such motions to reopen are
required to be filed. The period shall begin not later
than 60 days after the date of the enactment of the
Nicaraguan Adjustment and Central American Relief
Act and shall extend for a period not to exceed 240
days.
NACARA § 203(c). By regulation, the Attorney General set
the deadline at September 11, 1998. See 8 C.F.R.
§ 1003.43(e)(1) (2004) (formerly 8 C.F.R. § 3.43(e)(1)
(2002)).3
(iii) has been physically present in the United States for a con-
tinuous period of not less than 10 years immediately fol-
lowing the commission of an act, or the assumption of a
status, constituting a ground for removal;
(iv) has been a person of good moral character during such
period; and
(v) establishes that removal would result in exceptional and
extremely unusual hardship to the alien or to the alien’s
spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent resi-
dence.
See NACARA § 203(b).
3
An application for special rule cancellation of removal, to accompany
the motion to reopen, must have been submitted no later than November
18, 1999. See 8 C.F.R. § 1003.43(e)(2) (formerly 8 C.F.R. § 3.43(e)(2)
(2004)).
ALBILLO-DELEON v. GONZALES 6607
B. Albillo-DeLeon’s Motion to Reopen Proceedings
On September 10, 1998, Albillo-DeLeon retained Jovel
Mendez, who he believed to be an attorney, to file on his
behalf a motion to reopen proceedings pursuant to section
203(c). After the filing deadline passed, Albillo-DeLeon did
not receive any correspondence from the Immigration Court
or from Mendez. He followed-up with Mendez, requesting
information regarding the status of his motion.
Mendez assured Albillo-DeLeon that the motion had been
filed. Nevertheless, rather than provide Albillo-DeLeon with
specific information regarding the status of Albillo-DeLeon’s
motion, Mendez demanded additional money to investigate
further. Albillo-DeLeon refused to pay and became suspicious
of Mendez.
In September 1999, Albillo-DeLeon went to the Immigra-
tion Court, where a court clerk informed him that the court
had no record of Albillo-DeLeon’s motion. The clerk directed
Albillo-DeLeon to file a request under the Freedom of Infor-
mation Act (“FOIA”) to learn definitively the status of his
motion. Per the clerk’s instructions, Albillo-DeLeon filed a
FOIA request. On April 3, 2000, Albillo-DeLeon received a
copy of his court file and learned that Mendez never filed the
motion. Albillo-DeLeon also learned for the first time that
Mendez was not an attorney but an immigration consultant
and notario.4
On August 2, 2000, Albillo-DeLeon retained new counsel
and successfully filed a motion to reopen with the BIA. In his
motion, Albillo-DeLeon requested that the time limitation for
filing his motion be equitably tolled because of ineffective
4
Because Mendez was a notario and not a licensed attorney, Albillo-
DeLeon did not file a formal complaint with the California State Bar.
However, Albillo-DeLeon did file a complaint with the INS to notify it of
Mendez’s fraudulent misrepresentations.
6608 ALBILLO-DELEON v. GONZALES
assistance of counsel. Albillo-DeLeon explained that he failed
to meet the September 11, 1998, filing deadline only because
he believed Mendez’s representations that he was an attorney
and that he would timely file Albillo-DeLeon’s motion to
reopen. On May 10, 2001, the IJ denied the motion as
untimely and refused to equitably toll the deadline. Albillo-
DeLeon appealed the denial to the BIA. On January 31, 2002,
the BIA affirmed the IJ’s decision without opinion. This
appeal followed.
II. Discussion
A. Standard of Review
The BIA’s interpretation and application of immigration
laws is generally entitled to deference. See Simeonov v. Ash-
croft, 371 F.3d 532, 535 (9th Cir. 2004). Nevertheless, we are
not obligated to accept an interpretation that is demonstrably
irrational or clearly contrary to the plain and sensible meaning
of the immigration laws. See id.; Jahed v. INS, 356 F.3d 991,
997 (9th Cir. 2004). Because the BIA did not perform an
independent review of the IJ’s decision and instead deferred
to the IJ, we review the IJ’s decision. See Khup v. Ashcroft,
376 F.3d 898, 902 (9th Cir. 2004).
B. Albillo-DeLeon Is Likely Eligible for “Special Rule
Cancellation”
Albillo-DeLeon is likely to demonstrate a prima facie case
for “Special Rule Cancellation” relief. He is a native of Gua-
temala who applied for asylum on May 3, 1988, and has lived
continuously in the United States since February 29, 1988. He
has not been convicted of any crimes and is a person of good
moral character. Albillo-DeLeon is sixty years-old. He is mar-
ried, lives with, and supports at least four of his children. Two
of these children were born in the United States. After seven-
teen years in the United States, forcing Albillo-DeLeon to
return to Guatemala would likely pose an extreme hardship.
ALBILLO-DELEON v. GONZALES 6609
See Baltazar-Alcazar v. INS, 386 F.3d 940, 949 (9th Cir.
2004) (suggesting that courts review, among other things, the
petitioner’s age, length of residence in the United States, and
family ties in the United States when making a hardship deter-
mination). Thus, it is likely that Albillo-DeLeon would be
successful should his motion to reopen be deemed timely.
C. Section 203 Is a Statute of Limitations
[1] The pivotal issue in this case is whether section 203(c)’s
limitation period operates as a jurisdictional prerequisite or a
statute of limitations, because only a statute of limitations
may be subject to equitable tolling. Statutes of limitation are
primarily designed to assure fairness to defendants and to pro-
mote the theory that “even if one has a just claim it is unjust
not to put the adversary on notice to defend within the period
of limitation and that the right to be free of stale claims in
time comes to prevail over the right to prosecute them.” Bur-
nett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428 (1965) (quoting
Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321
U.S. 342, 348-49 (1944)). Further, such limitations relieve
courts of the burden of adjudicating stale claims when a plain-
tiff has slept on his rights. See id.[2] In contrast, a limitation period is not subject to equita-
ble tolling if it is jurisdictional in nature. See Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393 (1982). A jurisdic-
tional time limitation cannot be modified, and noncompliance
with such a limitation is an absolute bar. See Miller v. N.J.
State Dep’t of Corrs., 145 F.3d 616, 617-18 (3d Cir. 1998).
[3] When determining whether a statute of limitations is
jurisdictional or merely a time limitation subject to equitable
tolling, the Supreme Court has recognized that, while several
factors must be examined, the main purpose of the inquiry is
to discover congressional intent behind the statute. See Shen-
dock v. Dir., Office of Workers’ Comp. Programs, 893 F.2d
1458, 1462 (3d Cir. 1990) (“[A]ttachment of the label ‘juris-
6610 ALBILLO-DELEON v. GONZALES
diction’ to a statute’s filing requirements without examination
of its language and structure, as well as the congressional pol-
icy underlying it, would be an abdication of our duty to inter-
pret the language of a statute in accordance with Congress’s
intent in passing it.”); Ramadan v. Chase Manhattan Corp.,
156 F.3d 499, 501 (3d Cir. 1998).
To determine congressional intent, we examine the pur-
poses and policies underlying the limitation provision —
NACARA itself — and the remedial scheme developed for
the enforcement of the rights given by NACARA. See Bur-
nett, 380 U.S. at 427.
1. Congress’s Intent in Enacting NACARA
Congress enacted section 203 of NACARA in reaction to
IIRIRA’s severe consequences in making thousands of immi-
grants, including those from Guatemala, ineligible for suspen-
sion of deportation. See 144 Cong. Rec. S9973 (daily ed.
Sept. 8, 1998) (statement of Sen. Durbin) (“In 1997, this Con-
gress recognized [IIRIRA] could result in grave injustices to
certain groups of people.”), available at 1998 WL 567464. In
introducing an amendment to NACARA, one of its original
sponsors recognized that
Salvadorans, Guatemalans, Haitians and Hondu-
rans have now established roots in the United States.
Some have married here and many have children that
were born in the United States. Yet many still live in
fear. They cannot easily leave the United States and
return to the great uncertainty in their countries of
origin. If they are forced to return, they will face
enormous hardship. Their former homes are either
occupied by strangers or not there at all. The people
they once knew are gone and so are the jobs they
need to support their families. They also cannot
become permanent residents of the United States,
which severely limits their opportunities for work
ALBILLO-DELEON v. GONZALES 6611
and education. This situation is unacceptable and
requires a more permanent solution.
....
Such an alteration of [IIRIRA] made sense. After
all, the U.S. had allowed Central Americans to reside
and work here for over a decade, during which time
many of them established families, careers and com-
munity ties. The complex history of civil wars and
political persecution in parts of Central America left
thousands of people in limbo without a place to call
home. Many victims of severe persecution came to
the United States with very strong asylum cases, but
unfortunately these individuals have waited so long
for a hearing they will have difficulty proving their
cases because they involve incidents which occurred
as early as 1980. In addition, many victims of perse-
cution never filed for asylum out of fear of denial,
and consequently these people now face claims
weakened by years of delay.
. . . While restoration of democracy in Central
American and the Caribbean has been encouraging,
the situation remains delicate. Providing immigrants
from these politically volatile areas an opportunity to
apply for permanent resident status in the United
States instead of deporting them to politically and
economically fragile countries will provide more sta-
bility in the long run . . . . If we continue to deny
them a chance to live in the United States by deport-
ing them, we not only hurt them, we hurt us too.
Id. at S9973-74. Thus, having promulgated section 203 in
reaction to IIRIRA’s harsh results and recognizing that
NACARA would give certain immigrants relief from that
harshness, we presume that it would be contrary to Congress’s
6612 ALBILLO-DELEON v. GONZALES
intent that relief for aliens like Albillo-DeLeon could be cut
short and subjected to a severe jurisdictional time limit.
A memorandum from five Senators, which discusses the
purposes and limitations of NACARA, provides even greater
conclusive evidence that Congress intended section 203(c) to
function as a statute of limitations. When NACARA was
introduced in 1997, these Senators noted that “nothing [in sec-
tion 203(c)] prevents the Attorney General from adopting an
approach to the deadlines set out here consistent with applica-
tion of ordinary tolling principles.” 143 Cong. Rec. S12265-
67 (daily ed. Nov. 9, 1997) (Explanatory Memorandum
Regarding Title II of the D.C. Appropriations Po[r]tion of the
Omnibus Appropriations Bill Submitted by Sens. Mack, Gra-
ham, Abraham, Kennedy, and Durbin), available at 1997 WL
693186. In the memorandum, equitable tolling is addressed
only with respect to motions to reopen; tolling was not identi-
fied as applying to any other portion of NACARA.
[4] Thus, because NACARA was specifically created to
provide relief for aliens like Albillo-DeLeon and because its
legislative history clearly suggests that equitable tolling
should be applied to motions to reopen, we conclude that sec-
tion 203(c) was designed to be a statute of limitations, not a
jurisdictional prerequisite.
2. Munoz v. Ashcroft
Less than two years ago, in Munoz, we were asked to deter-
mine whether section 203(a) of NACARA was subject to
equitable tolling. 339 F.3d at 956-58. Section 203(a) identifies
the threshold requirements for NACARA eligibility. To qual-
ify for relief under NACARA, section 203(a) requires that an
alien file an asylum application by April 1, 1990, and apply
for certain benefits by December 31, 1991. In Munoz, the
petitioner applied for asylum on August 23, 1997, shortly
after he turned eighteen years old. See Munoz, 339 F.3d at
953. The petitioner argued that the eligibility filing dates
ALBILLO-DELEON v. GONZALES 6613
should be equitably tolled until one year after he reached the
age of majority. See id. at 956.
We disagreed, concluding that the NACARA eligibility fil-
ing deadlines (April 1, 1990, and December 31, 1991) are cut-
off dates. See id. at 957. Noting that section 203(a) is “fixed
by statute and unrelated to any variable,” and serves to define
and close class eligibility, we deemed the provision a jurisdic-
tional statute of repose and therefore not subject to equitable
tolling.5 Id.
3. Application to this Case
The government contends that this case is analogous to
Munoz, and that we should conclude that section 203(c), like
section 203(a), is jurisdictional and not subject to equitable
tolling. For the reasons set forth below, we find that section
203(c) is readily distinguishable from section 203(a).
First, section 203(a) involves a threshold condition for eli-
gibility under NACARA. Section 203(c), on the other hand,
serves a more limited purpose and applies to a smaller group
— namely, to only those aliens who have already complied
with section 203(a)’s filing deadlines. Albillo-DeLeon has
already met section 203(a)’s threshold requirements and is
likely eligible for cancellation of removal. In moving to
reopen his deportation proceedings, he is merely attempting to
obtain that relief under the more generous rules in place
before IIRIRA was enacted. This is exactly the purpose for
which NACARA was enacted.
5
A statute of repose, like a jurisdictional prerequisite, “extinguishes a
cause of action after a fixed period of time . . . regardless of when the
cause of action accrued.” 51 Am. Jur. 2d Limitation of Actions § 12
(2004); see also Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson,
501 U.S. 350, 363 (1991) (finding that a statute of repose is a fixed, statu-
tory cutoff date, usually independent of any variable, such as claimant’s
awareness of a violation).
6614 ALBILLO-DELEON v. GONZALES
In addition, section 203(c), unlike section 203(a), does not
identify a specific cutoff date by which a petitioner must file
his or her motion to reopen proceedings. Rather, section
203(c) states that the filing deadline “shall begin not later than
60 days after the date of the enactment of the [NACARA] and
shall extend for a period not to exceed 240 days” but allows
the Attorney General discretion in fixing the date.6 NACARA
§ 203(c).
Finally, as discussed above, the legislative history suggests
that Congress intended that motions to reopen be subject to
equitable tolling. See 143 Cong. Rec. S12265-67. The govern-
ment contends that we should ignore the legislative history
because section 203(c)’s plain language “provides clear intent
that it is to serve as a statute of repose.” The government is
correct in noting that where the plain meaning of a statute’s
language is clear, the sole function of the courts is to enforce
the statute. See United States v. Ron Pair Enters., Inc., 489
U.S. 235, 241 (1989). However, section 203(c)’s plain lan-
guage does not suggest that the statute is jurisdictional.
Rather, the absence of any language clearly proclaiming the
filing deadline as “jurisdictional” suggests that the statute is
not jurisdictional but a statute of limitations. See Zipes, 455
U.S. at 393-94 (holding that filing deadline was a statute of
limitations, not a jurisdictional prerequisite, where the statu-
tory language did not specifically identify the statute as juris-
dictional, and the legislative history characterized the filing
deadline as a “period of limitations”); see also United States
v. Locke, 471 U.S. 84, 94 n.10 (1985) (“Statutory filing dead-
lines are generally subject to the defenses of waiver, estoppel,
and equitable tolling.”)
Because section 203(c)’s plain language does not contain
any references, specific or otherwise, to suggest that the filing
6
The specific regulatory time frame for motions to reopen is found at
8 C.F.R. § 1003.43(e). Like the language of § 203(c) itself, the federal reg-
ulations do not describe these time limits as jurisdictional.
ALBILLO-DELEON v. GONZALES 6615
deadline is jurisdictional, and because section 203(c) is read-
ily distinguishable from section 203(a), we find that Munoz is
not controlling.
D. Section 203(c) Is Subject to Equitable Tolling
Just because section 203(c) is a statute of limitations, it
does not automatically follow that section 203(c) is subject to
equitable tolling. Rather, there is only a rebuttable presump-
tion that section 203(c), as a statute of limitations, is subject
to equitable tolling. See Munoz, 339 F.3d at 956.
[5] However, Congress’s intent in enacting section 203(c)
was to provide those aliens who met the threshold require-
ments of section 203(a) an opportunity to reopen their
removal or deportation proceedings in order to benefit from
the more generous pre-IIRIRA rules. Further, NACARA’s
legislative history demonstrates that Congress intended that
equitable tolling apply to motions to reopen. Thus, because
section 203(c)’s language and its legislative history do not
rebut the presumption that it is subject to equitable tolling, we
conclude that section 203(c) is subject to equitable tolling.
E. Albillo-DeLeon Is Entitled to Equitable Tolling
We must next determine whether equitable tolling is appro-
priate in this case. See Burnett, 380 U.S. at 427 (requiring that
the court determine “whether congressional purpose is effec-
tuated by tolling the statute of limitations in [these] circum-
stances”); King v. California, 784 F.2d 910, 914-15 (9th Cir.
1986) (stating that the “basic inquiry” in “decid[ing] whether
equitable tolling should apply” is “whether tolling the statute
in certain situations will effectuate . . . congressional pur-
pose”).
1. Albillo-DeLeon Was Denied Effective Assistance of
Counsel
[6] Albillo-DeLeon contends that the deadline for filing his
motion to reopen should be equitably tolled because his
6616 ALBILLO-DELEON v. GONZALES
untimeliness was the direct result of ineffective assistance of
counsel. It is well established in this circuit that ineffective
assistance of counsel, where a nonattorney engaged in fraudu-
lent activity causes an essential action in his or her client’s
case to be undertaken ineffectively, may equitably toll the
statute of limitations. See Fajardo v. INS, 300 F.3d 1018,
1020 (9th Cir. 2002); Rodriguez-Lariz v. INS, 282 F.3d 1218,
1224 (9th Cir. 2002); Socop-Gonzalez v. INS, 272 F.3d 1176,
1187-88, 1193-96 (9th Cir. 2001); Varela v. INS, 204 F.3d
1237, 1240 (9th Cir. 2000); Lopez v. INS, 184 F.3d 1097,
1098 (9th Cir. 1999).
For example, in Lopez, the petitioner hired “counsel” to
represent him in obtaining a work permit. Id. at 1098.
Unknown to Lopez, he had retained the services of a notary,
not a licensed attorney. See id. at 1099. The notary filed an
application for political asylum (rather than a work permit),
instructed Lopez not to attend the INS interview or deporta-
tion hearing, and failed to appear on Lopez’s behalf. See id.
at 1098. Lopez was ordered deported in absentia. See id. at
1099. Lopez hired new counsel and filed a motion to reopen
his proceedings because of ineffective assistance of counsel,
which the BIA dismissed as untimely. See id. at 1098. On
appeal, we reversed, holding that “the statute of limitations to
reopen an order of deportation is equitably tolled where the
alien’s late petition is the result of the deceptive actions by a
notary posing as an attorney.” Id. at 1100.
[7] Like Lopez, Albillo-DeLeon was affirmatively deceived
by a nonattorney. On September 10, 1998, within the filing
deadline, Albillo-DeLeon paid Mendez to file a motion to
reopen under NACARA. When Albillo-DeLeon did not
receive any correspondence from the Immigration Court or
from Mendez, he followed-up with Mendez. Growing suspi-
cious of Mendez, Albillo-DeLeon acted diligently, seeking
the advice of a clerk at the Immigration Court and filing a
FOIA request to determine the true status of his file. When
Albillo-DeLeon learned of Mendez’s deception, he retained
ALBILLO-DELEON v. GONZALES 6617
an attorney and filed a second motion to reopen. Albillo-
DeLeon’s first motion was not filed solely because of
Mendez’s inaction and deception. Therefore, we find equita-
ble tolling appropriate in this case.
2. Albillo-DeLeon’s Motion to Reopen Was Timely
The government asserts that Albillo-DeLeon’s motion to
reopen is untimely because he first learned that he had
received ineffective assistance in September 1999 but failed
to file his motion to reopen until August 2000.
“In tolling statutes of limitations, courts have typically
assumed that the event that ‘tolls’ the statute simply stops the
clock until the occurrence of a later event that permits the stat-
ute to resume running.” Socop-Gonzalez, 272 F.3d at 1195.
Equitable tolling will be applied in situations where, “despite
all due diligence, [the party requesting equitable tolling] is
unable to obtain vital information bearing on the existence of
the claim.” Supermail Cargo, Inc. v. United States, 68 F.3d
1204, 1207 (9th Cir. 1995) (internal quotations and citation
omitted).
Albillo-DeLeon first became concerned with Mendez’s
performance in September 1999. But Albillo-DeLeon did not
definitively learn that Mendez failed to file his motion until
April 3, 2000, when Albillo-DeLeon received a copy of his
court file pursuant to his FOIA request. Only when Albillo-
DeLeon received his court file on April 3, 2000, did he finally
“obtain vital information bearing on the existence of the
claim.” Id.[8] Nor was Albillo-DeLeon’s September 1999 to April
2000 delay in obtaining this vital information due to any lack
of diligence on his part. Further, once he became suspicious,
Albillo-DeLeon acted diligently in making his FOIA request
and retaining new counsel. See Iturribarria v. INS, 321 F.3d
889, 897 (9th Cir. 2003) (recognizing equitable tolling on
6618 ALBILLO-DELEON v. GONZALES
motion to reopen during periods when petitioner is prevented
from filing because of deception, fraud, or error, as long as
the petitioner “acts with due diligence in discovering the
deception, fraud, or error”); Rodriguez-Lariz, 282 F.3d at
1225 (finding due diligence where petitioners, after learning
conclusively that they had been misled by a non-attorney,
promptly retained new counsel and filed a motion to reopen).
Once Albillo-DeLeon became suspicious of Mendez’s perfor-
mance, he promptly contacted the Immigration Court and
filed his FOIA request. Accordingly, we find that Albillo-
DeLeon’s deadline for filing his motion to reopen was tolled
to April 3, 2000, the date he conclusively learned of Mendez’s
deficient representation.
[9] Section 203(c) provides aliens with 238 days to file a
motion to reopen proceedings. See NACARA § 203(c) (rec-
ommending to the Attorney General that the period for filing
a motion to reopen not exceed 240 days); 8 C.F.R.
§ 1003.43(e)(1) (allowing aliens to file a motion to reopen
from January 16, 1998 to September 11, 1998 — 238 days).
In this case, Albillo-DeLeon filed his motion to reopen on
August 2, 2000, 121 days after he received his FOIA
response. Because Albillo-DeLeon filed his motion to reopen
within 121 days of learning that Mendez failed to file his
motion to reopen — well under the 238 days afforded by sec-
tion 203(c) — we find that it was timely filed.
III. Conclusion
For the reasons set forth above, we find that section 203(c)
of NACARA is a statute of limitations subject to equitable
tolling. Further, we conclude that equitable tolling is appropri-
ate in this case because Albillo-DeLeon was deceived and
severely prejudiced by Mendez’s ineffective assistance.
Accordingly, we GRANT Albillo-DeLeon’s petition for
review and REMAND to the BIA for further proceedings not
inconsistent with this opinion.