Summary
The United States Court of Appeals for the Second Circuit held that the filing deadline for motions to reopen immigration proceedings may be equitably tolled when an alien alleges ineffective assistance of counsel. The court nevertheless affirmed the Board of Immigration Appeals because Stanislav Iavorski failed to exercise the required due diligence in pursuing his claim. The court also concluded that the applicable filing deadline was not a jurisdictional bar.
Topics
Practice areas
Questions Presented
- Whether the 90-day filing deadline for motions to reopen deportation proceedings may be equitably tolled when ineffective assistance of counsel allegedly caused the alien to miss the deadline.
- What showing of diligence is required for an alien seeking equitable tolling based on ineffective assistance of counsel.
- Whether Iavorski demonstrated sufficient diligence to obtain equitable tolling of the deadline for his motions to reopen.
Holdings
- The filing deadline for motions to reopen deportation proceedings is not jurisdictional and may be equitably tolled when ineffective assistance of counsel causes an alien to miss the deadline.
- Iavorski did not exercise the reasonable diligence required for equitable tolling because, after a few initial unsuccessful attempts to contact his attorney, he made no further effort to determine whether an appeal had been filed for nearly two years.
- The BIA's denial of Iavorski's untimely motions to reopen was affirmed because, even assuming ineffective assistance of counsel, Iavorski failed as a matter of law to satisfy the diligence requirement for equitable tolling.
Key quotations
“We hold that the filing deadline for motions to reopen may be equitably tolled by an alien claiming ineffective assistance of counsel, but that petitioner did not exercise the requisite due diligence in pursuing his claim to warrant the tolling of the filing deadline for the relevant period.” (232 F.3d at 125)
“For an untimely claim to receive the benefit of equitable tolling, however, an alien must demonstrate not only that the alien's constitutional right to due process has been violated by the conduct of counsel, but that the alien has exercised due diligence in pursuing the case during the period the alien seeks to toll.” (232 F.3d at 135)
Factual background
Iavorski, a Russian citizen, entered the United States on a tourist visa, overstayed, and applied for asylum and withholding of deportation. The Immigration Judge denied those applications, granted voluntary departure, and ordered that any appeal be filed by March 18, 1996. Although Iavorski asserted that his attorney promised to file an appeal, no appeal was filed; after a few unsuccessful attempts to contact counsel, Iavorski did not investigate the status of the appeal until 1998, when he sought information in connection with the Diversity Visa Program.
Procedural history
The Immigration Judge denied Iavorski's asylum and withholding-of-deportation applications but granted voluntary departure. After learning approximately two years later that his attorney had not filed the promised appeal, Iavorski filed a motion to reopen, followed by a second motion treated by the BIA as another motion to reopen. The IJ and BIA denied the motions as untimely, and the Second Circuit affirmed.