PETITION FOR REVIEW FROM THE ORDER AND JUDGMENT OF THE BOARD OF IMMIGRATION APPEALS Agency No. A73 591 940
The opinion of the court was delivered by: Barry, Circuit Judge
* Attorney General Alberto Gonzales has been substituted for former Attorney General John Ashcroft, the original respondent in this case, pursuant to Fed. R. App. P. 43(c).
Before: BARRY, FUENTES, and BECKER, Circuit Judges
A motion to reopen a removal order issued in absentia must be filed within 180 days of the order. The primary issue before us, an issue of first impression, is whether the 180-day time limitation is mandatory and jurisdictional, or whether it is analogous to a statute of limitations and therefore can be equitably tolled. If it is the latter, we must decide whether fraud constitutes a basis for equitable tolling.
We hold that the 180-day time limitation can be equitably tolled, and can be tolled for fraud. As such, we will remand this case to the Board of Immigration Appeals ("BIA") for it to determine whether fraud was, in fact, perpetrated on petitioner by his legal representatives and, if so, whether the time limitation was sufficiently tolled so as to render the motion to reopen timely.
Jose Borges entered the United States on February 12, 1996 with a B-2 tourist visa. The then-Immigration and Naturalization Service ("INS") *fn1 commenced removal proceedings in August of 1997, alleging that he was an illegal overstay. Borges hired an immigration services company, Entra America ("Entra"), in January of 1998 to provide him with representation. What he was provided with, he alleges, was representation that amounted to fraud.
A. Entra and Alfred Placeres, Esq.
Adela Ivan was the owner of Entra. She told Borges that she was a paralegal, but that Borges would be represented by one of Entra's immigration attorneys, Alfred Placeres, Esq. She also told him that Placeres would file a motion seeking a change of venue from New Jersey, where the removal proceedings were pending, to New York, where Borges lived, and that Placeres would represent Borges on an adjustment of status petition based on his then-pending marriage to Jolie LaMarca, a United States citizen.
On January 20, 1998, a change of venue motion which, Placeres tells us, "we" prepared, A200, was filed by Placeres. One week later, on January 27, Borges appeared at the Immigration Court in Newark, New Jersey. No attorney accompanied him. The Immigration Judge ("IJ") denied the change of venue motion and told Borges that if he did not return on February 3, 1998, he would be deported. Borges contacted Ivan, and she allegedly told him, supposedly at Placeres's behest: (1) that Placeres would not appear in court; (2) that if Borges went to court without an attorney, he would be deported; and (3) that because Borges had a pending application for adjustment of status, he could not be deported. Borges did not attend the proceedings on February 3, 1998, and the IJ ordered him removed from the United States in absentia.
In the meantime, on January 29, 1998, Borges married Ms. LaMarca. One month later, an Immediate Relative Petition (Form I-130) and an Adjustment of Status Petition (Form I-485) were filed – again, by Placeres. The documents were not only erroneously filed with the INS in New York, and not with the Immigration Court in New Jersey,*fn2 but erroneously indicated that Borges had never been the subject of removal proceedings. Unaware of the Immigration Court's orders, the INS in New York issued Borges an employment authorization based on the pending petitions, and an adjustment of status interview, which was scheduled for February 26, 2000. Given those facts, Borges assumed that the in absentia order had been vacated.
B. First Motion to Reopen
In April of 1998, Borges received a letter from the INS telling him to report to the Hemisphere Center in Newark for deportation to Venezuela. Borges went to the Entra office and showed the letter to Ivan, who told him that Placeres had "taken care of" the in absentia order of removal by filing the adjustment of status petition, and reassured him that Placeres would file a motion to reopen and formally vacate the in absentia order.
On April 25, 1998, a timely "Motion to Reopen and Reconsider" was filed with the Immigration Court. It sought to vacate the in absentia order solely on the ground that the motion for a change of venue had been wrongly denied; it never mentioned the pending adjustment of status petition or gave any reason for Borges's failure to appear on February 3. The IJ denied the motion and served a ...