Saturday, February 16, 2008

Junaidi (not precedential): Suggestions Equitable Tolling for Lozada is Nearly Impossible

In Junaidi v. Mukasey, No. 06-4702 (3d Cir. Jan. 28, 2008) (not precedential), Judges Rendell, Nygaard, and Vanaskie (sitting by designation from M.D. Pa.) refused to apply equitable tolling to someone who raised a Lozada claim (which is a claim that a prior lawyer did such an ineffective job that the client was deprived of a fair hearing).

Equitable tolling is a sensible method of extending the usual deadline to try to reopen a case if there are reasons the client could not have raised them earlier -- such as if someone hid the basis for reopening a case for many months. If someone hid the reason to file the motion for many months, it is only fair to extend the deadline for making the motion by several months also, as long as the client acts diligently throughout the process.

The Third Circuit has held that equitable tolling can apply to the usual 90-day deadline to file a motion to reopen. Mahmood v. Gonzales, 427 F.3d 248, 251 & n.7 (3d Cir. 2005).

What is controversial about this decision is that the court glosses over the fact that the first lawyer allegedly provided ineffective assistance. The court hints that clients are always in a position to know in an instant when a lawyer who promises to give competent assistance is actually making a grave error. I am not so sure that's true -- after all, in the tax arena, how often does a client know within an instant that his accountant has made a slight error on the tax form? Is the court assuming that all clients are experts on immigration law and can detect lawyer errors right away?

The court suggests that to obtain equitable tolling, you should include some allegation against the prior counsel that relates to the inability to meet the 90-day deadline. Many other cases in this area do not set out an explicit requirement in this way. It would be interesting to contrast this case with Jin Bo Zhao v. INS, 452 F.3d 154 (2d Cir. 2006) and to research deeper into cases where equitable tolling has been allowed even without an explicit allegation of something the prior lawyer did that directly affected the client's ability to file a motion to reopen.

Perhaps the best way to distinguish the case is to spend additional time laying out the client's educational background, litigation experience, law school education, and give the client a pop quiz on immigration law to demonstrate whether the client is an expert who could spot an attorney's error in an instant.

Perhaps this means that the amount of work, time, (and therefore cost) of pursuing a Lozada claim should be increased. And perhaps to urge the BIA and the Third Circuit to reject this requirement -- or at least to force the court to make a factual inquiry into the particular client's ability to spot lawyer errors. Puzzling.


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