Gao, Yuan v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4431
YUAN GAO,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
No. A75 688 812
____________
ARGUED DECEMBER 11, 2007—DECIDED MARCH 11, 2008
____________
Before POSNER, WOOD, and EVANS, Circuit Judges.
POSNER, Circuit Judge. This proceeding to review the
denial of asylum has a tangled history unnecessary to
recount. The only issue we need resolve is whether the
Board of Immigration Appeals erred in dismissing, as
untimely, the petitioner’s appeal from the immigration
judge’s denial of his motion to reopen the asylum pro-
ceeding. He had 90 days to move to reopen, 8 C.F.R.
§ 1003.23(b)(1), but did not file his motion until the 106th
day. He argues that his delay should be excused because
he did not discover that he had a basis for reopening
2 No. 06-4431
until he met with a new lawyer and learned that his
previous lawyer had given him ineffective legal assistance,
and it was not until a month after the 90-day clock started
to run that he knew he had a claim for relief. He argues
that the 90-day clock should have started to run then,
and not earlier when the order of the immigration judge
that he sought to reopen was entered.
The government concedes that the 90-day deadline is
not rigid—that it can, as we have held, be extended in
appropriate circumstances by appeal to the doctrine of
equitable tolling. Patel v. Gonzales, 442 F.3d 1011, 1016
(7th Cir. 2006); Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th
Cir. 2005); see, e.g., Ghahremani v. Gonzales, 498 F.3d 993,
999-1000 (9th Cir. 2007); Valeriano v. Gonzales, 474 F.3d 669,
673 (9th Cir. 2007); Mahamat v. Gonzales, 430 F.3d 1281,
1283 (10th Cir. 2005). The doctrine creates a defense to
statutes of limitations and other nonjurisdictional filing
deadlines for cases in which, despite due diligence, the
plaintiff cannot sue within the statutory deadline, usually
because he can’t discover within that time that he has
suffered an injury upon which a suit could be based or,
if he knows that much, yet he does not know and cannot
by due diligence discover who his injurer was. E.g.,
Farzana K. v. Indiana Dep’t of Education, 473 F.3d 703, 705
(7th Cir. 2007); Cada v. Baxter Healthcare Corp., 920 F.2d 446,
452-53 (7th Cir. 1990); Luntungan v. Attorney General, 449
F.3d 551, 557 (3d Cir. 2006).
Equitable tolling will rarely be available when a claimant
can obtain an extension of time for complying with a
deadline. (Surprisingly, we can find no case that ad-
dresses this point.) Obviously in the usual statute of
limitations setting he cannot obtain an extension of
time—he can go to the defendant and ask the defendant to
No. 06-4431 3
waive the statute of limitations, but he cannot force him
to do so or ask the court to force him. That is not the case
with a court-imposed filing deadline subject to extensions
unless the claimant is somehow prevented, by circum-
stances that would qualify as grounds for equitable
tolling, from filing for one.
Asked at argument why he had failed to ask for an
extension, the petitioner’s lawyer answered haplessly that
he had not done so because he thought he had a good
defense of equitable tolling. That is a bad reason, but we
hesitate to place decision on the ground of his having
failed for no good reason to ask for an extension. For it is
unclear whether the immigration judge could have
given him one; and, if not, his only recourse may in-
deed have been to plead equitable tolling.
The statute says that “the motion to reopen shall be
filed within 90 days of the date of entry of a final adminis-
trative order of removal,” 8 U.S.C. § 1229a(c)(7)(C)(i), and
the implementing regulation that “a motion to reopen
must be filed within 90 days of the date of entry of a
final administrative order of removal, deportation, or
exclusion, or on or before September 30, 1996, whichever
is later.” 8 C.F.R. § 1003.23(b)(1). Another subsection of
this regulation, § 1003.23(b)(1)(iv), provides that the
immigration judge may “set and extend time limits for
replies to motions to reopen,” but there is no provision
authorizing an extension of the deadline for filing the
motion to reopen itself. Still another subsection, this one
captioned “pre-decision motions,” provides that an
“Immigration Judge may set and extend time limits” for
pre-decision motions and replies to such motions.
§ 1003.23(a). But a motion to reopen is of course a post-
decision motion. Section 1003.31(c) provides that “the
4 No. 06-4431
Immigration Judge may set and extend time limits for
the filing of applications and related documents and
responses thereto, if any. If an application or document
is not filed within the time set by the Immigration Judge,
the opportunity to file that application or document
shall be deemed waived” (emphasis added). In other
words, the immigration judge may extend the deadlines
that he sets, as in Hussain v. Gonzales, 424 F.3d 622, 626
(7th Cir. 2005), and Singh v. Gonzales, 495 F.3d 553, 559 n. 2
(8th Cir. 2007). We have found no case that suggests that
this provision authorizes the immigration judge to
extend a statutory deadline.
The 90-day deadline cannot be jurisdictional, for then it
could not be tolled. But a litigant cannot be heard to
complain about a judicial officer’s failure to do an unautho-
rized act, even if the act would not be considered outside
his jurisdiction in the sense that it would have to be
ignored even if no party complained about it.
Rather than wrestle with the question of the immigra-
tion judge’s authority to extend the 90-day deadline—a
question the parties have not briefed—we move to an
alternative ground for denying equitable tolling, which is
that the doctrine does not reset the clock. Gaiman v.
McFarlane, 360 F.3d 644, 656 (7th Cir. 2004); Hentosh v.
Herman M. Finch University of Health Sciences, 167 F.3d
1170, 1175 (7th Cir. 1999); Cada v. Baxter Healthcare Corp.,
supra, 920 F.2d at 452-53; Amini v. Oberlin College, 259 F.3d
493, 501-02 (6th Cir. 2001); Dring v. McDonnell Douglas
Corporation, 58 F.3d 1323, 1331 (8th Cir. 1995); contra,
Cabello v. Fernandez-Larios, 402 F.3d 1148, 1155-56 (11th
Cir. 2005); Socop-Gonzales v. INS, 272 F.3d 1176, 1195 (9th
Cir. 2001) (en banc). So if there is a 10-year statute of
limitations for a suit on a written contract, and the plain-
No. 06-4431 5
tiff has grounds for equitable tolling of that limitation,
this doesn’t mean he gets another 10 years to sue. Indeed,
we have held that a litigant who learns, or had he been
diligent would have learned, all the facts that he
would need in order to be able to file his claim, while
time remains in the limitations period, must file it before
the period ends. Cada v. Baxter Healthcare Corp., supra, 920
F.2d at 453; Brademas v. Indiana Housing Finance Authority,
354 F.3d 681, 687 (7th Cir. 2004). The defendant should not
be left on tenterhooks for 20 years if the plaintiff could
readily have sued in the eleventh year or even earlier.
The Board of Immigration Appeals has not adopted its
own position on the question of resetting the clock—a
question on which there is a disagreement among the
circuits, as our citations showed, though our position that
the doctrine does not reset the clock is the majority posi-
tion. (The petitioner assumes rather than argues resetting;
the Justice Department ignores the issue in its brief.)
Rather, the Board has followed whatever approach to
equitable tolling is taken by the court of appeals in
which a petition to review its order will be filed. E.g., In
re Guitierrez, 2007 WL 4699960 (BIA Dec. 12, 2007); In re
Reyes-Diaz, 2007 WL 4699882 (BIA Nov. 8, 2007); In re
Gordon, 2007 WL 3301744 (BIA Sept. 26, 2007); In re Khan,
2007 WL 2074553 (BIA June 15, 2007). And in this cir-
cuit, equitable tolling does not reset the clock.
The petition was filed on the 106th day, which was the
75th or 76th day after the petitioner discovered that he
had a ground for filing a petition to reopen. The prepara-
tion of such a petition does not require an elaborate
investigation. All that is required is that the petitioner
submit an affidavit explaining (1)(a) what his former
counsel was hired to do and (b) how he failed,
6 No. 06-4431
(2) affirming that the petitioner has notified the former
counsel of his allegations of ineffective assistance and
given counsel an opportunity to respond, (3) attaching
the lawyer’s response, if any, and (4) indicating whether
the petitioner has filed his complaint about his former
counsel with the appropriate disciplinary authorities. In re
Lozada, 19 I. & N. Dec. 637 (BIA 1988); see also Patel v.
Gonzales, 496 F.3d 829, 830 (7th Cir. 2007); Benslimane v.
Gonzales, 430 F.3d 828, 831 (7th Cir. 2005); Yang v. Gonzales,
478 F.3d 133, 142 (2d Cir. 2007). Obtaining the necessary
information should not take two and a half months—at
least not normally; and the petitioner has failed to point
to any circumstances that made this the abnormal case
in which a diligent attempt to comply with the 90-day
deadline would have failed, in which event an appeal
to equitable tolling would lie.
An oddity about the case remains to be noted. The
Board of Immigration Appeals affirmed the denial of the
petition to reopen on several grounds besides its untimeli-
ness. In his brief in this court, and at argument, the peti-
tioner’s lawyer argued vigorously that the petition was
saved by equitable tolling. The government ignored the
point in its brief. We cannot, however, treat that as a
waiver or forfeiture. An appellee (or, the equivalent, the
respondent in an appeal from an administrative agency)
is not required to file a brief. Fed. R. App. P. 31(c); Pasha
v. Gonzales, 433 F.3d 530, 535 (7th Cir. 2005); Allgeier v.
United States, 909 F.2d 869, 871 n. 3 (6th Cir. 1990). If
he doesn’t, he weakens his chances for an affirmance,
of course, Pasha v. Gonzales, supra, 433 F.3d at 535; In re
Talbert, 344 F.3d 555, 557 (6th Cir. 2003); Casco Indemnity
Co. v. Rhode Island Interlocal Risk Management Trust, 113
F.3d 2, 3-4 (1st Cir. 1997), but that is all. So while the
No. 06-4431 7
government’s litigating strategy in this case is puzzling,
it does not foreclose our denying the petition for review
on the ground that the government chose not to mention.
DENIED.
USCA-02-C-0072—3-11-08