2.19.2007

Sixth Circuit Notes Split Re Whether Deadline for Filing Motion to Reopen Immigration Hearings May be Equitably Estopped

Per Ajazi v. Gonzales, Slip Copy, 2007 WL 328692 (6th Cir. Feb. 2, 2007):

Petitioner argues that the BIA [Board of Immigration Appeals] abused its discretion "by misapplying the statute and the precedent case law set by this court" to deny Petitioner's Motion to Reopen. We do not agree. A motion to reopen "must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened." 8 C.F.R. § 1003.2(c)(2) (2005). Although several circuits have held that the deadline for filing a motion to reopen immigration proceedings may be equitably tolled, see Iavorski v. INS, 232 F.3d 124, 133 (2nd Cir.2000); Socop-Gonzalez v. INS, 272 F.3d 1176, 1181 (9th Cir.2001) (en banc), this Court has never, in a controlling and published opinion, followed suit. See Scorteanu, 339 F.3d at 413 (declining to decide whether equitable tolling applies to § 242 of the Act); Harchenko v. INS, 379 F.3d 405, 409-10 (6th Cir.2004) (acknowledging unpublished cases in this Circuit that apply equitable tolling, but finding petitioners failed to raise the issue). While this Court has applied an equitable tolling inquiry in unpublished opinions, it has not-- even in those cases--found the BIA abused its discretion in dismissing untimely appeals. See Miculi v. Ashcroft, 96 F. App'x 338, 340 (6th Cir.2004) (unpublished); Ormanci v. Ashcroft, 110 F. App'x 486, 487-88 (6th Cir.2004) (unpublished); Hermiz v. INS, 86 F. App'x 44, 45 (6th Cir.2003) (unpublished).

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