Tuesday, February 1, 2011

NACARA Motion to Reopen Deadline Tolled Seven Years

Mejia-Hernadez v. Holder No 07-74277

United States Court of Appeals for the Ninth Circuit

2011 U.S. App. LEXIS 1699 (January 27, 2011)

Mr. Mejia-Hernandez applied for Asylum November 1993. The Guatemala Guerrillas had almost beaten him to death. However, an Asylum officer denied the claim because Mr. Mejia-Hernandez did not connect the beating to any protected ground. Mr. Mejia-Hernandez was referred to an immigration judge (IJ). He appeared pro se at several hearings submitting a proper change of address notice to the court. Mr. Mejia-Hernandez was sent a certified notice of a rescheduled hearing but the notice was returned to the court as unclaimed. On January 7, 1997 the court ordered Mr. Mejia-Hernandez deported in absentia.

On March 31, 1998 Mr. Mejia-Hernandez and Ms. Perez-Lopez, the mother of his two U.S. citizen children hired Bryan Ramos to help them with their immigration case. Mr. Ramos falsely represented himself as an attorney. Mr. Ramos told Mr. Mejia-Hernandez that he could apply for NACARA under Mrs. Perez-Lopez even though they were not married. Mr. Ramos filed a NACARA application for Ms. Perez-Lopez and a Motion to Reopen for Mr. Mejia-Hernandez. The motion to reopen was returned for failure to include the fee. Mr. Mejia-Hernandez confronted Mr. Ramos about the returned motion, but Mr. Ramos reassured him that the court had made an error and that he would correct it. Mr. Ramos never filed the motion. Mr. Mejia-Hernandez and Ms. Perez-Lopez subsequently married on November 15, 1998.

For seven years Mr. Mejia-Hernandez and his wife paid Mr. Ramos to handle their cases. Mr. Ramos continued to reassure them that everything was in order. Ms. Perez-Lopez finally received her NACARA appointment but Mr. Ramos refused to attend the appointment with her. It was then that the couple learned through Mr. Ramos’ secretary that he was not in fact a lawyer. Ms. Perez-Lopez was granted NACARA on January 7, 2005. Mr. Mejia-Hernandez hired new counsel on April 30, 2005 and on July 5, 2005 he filed a motion to rescind the in absentia order of deportation.

The IJ granted a sua sponte motion to reopen based on (1) Mr. Mejia-Hernandez’ timely filed but never adjudicated Asylum claim; (2) Mr. Mejia-Hernandez’s two U.S. citizen children and LPR wife who obtained status through NACARA; (3) Mr. Mejia-Hernandez’s deportation would cause extreme hardship to his family, and (4) it was in the interest of justice to reopen the case. At the subsequent merits hearing the ICE attorney stated that Mr. Mejia-Hernadez was statutorily eligible for NACARA and that he had established the necessary hardship. However, on appeal the government claimed that the sua sponte reopening was an abuse of discretion. Mr. Mejia-Hernandez countered that he had not received proper notice of his 1997 hearing. The BIA rejected Mr. Mejia-Hernandez’ notice and equitable tolling arguments and reinstated the deportation order.

The Ninth Circuit disagreed with Mr. Mejia-Hernandez's claim that the fact that he did not receive actual notice of his 1997 hearing constituted grounds to reopen his case. The Ninth Circuit also held that it lacked jurisdiction to review the BIA’s decision to overturn the IJ’s sua sponte reopening. However, the Ninth Circuit disagreed with the IJ and BIA’s determination that Mr. Mejia-Hernandez had missed the deadline for his motion to reopen under NACARA.

The Ninth Circuit recognizes the tolling of motion deadlines during periods when the individual is prevented from filing because of deception, fraud or error. The individual however must act with due diligence in discovering the deception, fraud or error. Iturribarria v. INS 321 f.3d 889 (9th Cir. 2003). Mr. Mejia-Hernandez was deceived by Mr. Ramos who told him that a Motion to reopen had been filed and told him that he had to wait for a grant of his wife’s case in order to regularize his own status. It was reasonable for Mr. Mejia-Hernandez not to discover the deception until 2005 when Ms. Perez-Lopez’s NACARA case was adjudicated. Moreover, as Mr. Ramos obtained relief for Ms. Perez-Lopez, it was reasonably took a couple of more months for Mr. Mejia-Hernandez to become suspicious and visit an attorney to check on the veracity of Mr. Ramos’ assurances. The deception was verified on April 30, 2005 when the new attorney obtained called the automated court system. Consequently, the equitable tolling began when Mr. Ramos misrepresented himself as an attorney and ended April 30, 2005 when the new attorney discovered the truth. The seven years and one month of tolling are added to the September 11, 1998 NACARA motions to reopen deadline. Since Mr. Mejia- Hernandez filed his motion on July 5, 2005 he met his adjusted deadline of October 11, 2005. The Ninth Circuit remanded the case back to the BIA to consider Mr. Mejia-Hernandez’s eligibility for NACARA on his own right.





| Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference NACARA Motion to Reopen Deadline Tolled Seven Years: