Saturday, October 29, 2005

Mahmood: equitable tolling when attorney does not get notice

Filed 10/27/05, No. 03-3760
Mahmood v. Atty Gen USA
Mahmood v. Gonzales
Precedential Decision

The Third Circuit Court of Appeals ruled that the deadline for filing a motion to reopen a case can be equitably tolled (extended for equitable reasons) upon showing the reason the immigrant failed to act in time was the wrongdoing of the lawyer.

This case dealt with a motion to reopen an immigration judge's decision even though the motion was filed more than 90 days after the final order in the case. Ordinarily, motions to reopen cannot be filed over 90 days after the final order. (The immigrant could not file a late appeal because the deadline for an appeal is 30 days after the final order.) (There are many exceptions and subrules in immigration law. The deadline for reopening a case where the deportation order was issued without the immigrant showing up in court is actually 180 days, not 90 days. And if you can show you never received notice of the hearing, there is no time limit because you can ask to reopen the case at any time. Immigration law is very complex...)

The Third Circuit ruled in Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005) that if the failure to file in time was due to the active fraud of the attorney, the 180-day deadline for orders when the immigrant does not show up can be extended. In this case, the Third Circuit expanded the rule in a few ways: (1) the equitable extension for the 180-day limit also can apply to the 90-day limit and (2) the immigrant can get an extension by showing the lawyer failed to perform his duty and does not need to prove outright fraud by the lawyer. One limitation, though, which ruined the appeal in this case, is that the immigrant must prove due diligence in acting promptly once he or she found out about the problem.

To get an equitable extension, it is enough to show that the immigrant never received the notice and the lawyer had the immigrant's current address. That's sufficient because regardless of whether the court forgot to mail notice to the lawyer or whether the lawyer lost or forgot to inform the immigrant at his or her current address, it was not the immigrant's fault in any way.

The Third Circuit adopted a harsh interpretation of what constitutes due diligence. It blames the immigrant for not following up with the Third Circuit in the 18 months that he waited to hear of any ruling in his case. Also, during another part of the procedural history, it took him a year to file a motion to reopen an appeal, but gave no indication that he was trying to find new counsel or otherwise trying to pursue his case. The Third Circuit noted that a foreigner has more than the average difficulty in negotiating the shoals of American law, yet nevertheless harshly ruled the immigrant failed to act fast enough.


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