Ninth Circuit Rejects a Challenge to Reopen Deadline for 212(c) relief
The relief of 212(c): is used for applicable criminal convictions which occurred prior to 1996. Lawful permanent residents who are put into deportation proceedings can file a special motion to use this relief. The time for filing the special motion is 90 days upon learning his or her rights to file a special motion to reopen his immigration proceedings.
On September 20, 2011 the Ninth Circuit in Juan Carlos Tapia Luna v. Eric H., Holder Jr., Attorney General, No. 08-71086, 2011, rejected an attempt to reopen immigration proceedings and held that a deadline to file a special motion for 212(c)relief is a Constitutionally sound procedural rule.
In this case, Juan Carlos Tapia Luna (Tapia) a native and citizen of Mexico, was admitted to the US on May 1990 as an immigrant. In September 1993, Tapia was convicted in a California state court after pleading guilty to receiving stolen property. He was ordered to be deported. He did not apply for relief from the deportation and waived his right to appeal. His departure was witnessed by a deportation officer in December 2000. Though later Tapia reentered the US illegally.
Issue of Law
The court decided that Tapia’s removable proceedings based on both aggravated felony and a crime of moral turpitude. Further he was not given LPR status until May 1990 thus had not yet accrued the required seven years domicile in 1993. Furthermore Tapia missed the special motion to reopen deadline, which is 90 days upon learning his rights to file special motions to reopen his immigration proceedings.
Equitable tolling may apply when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error. And to successfully prove his case, the petitioner must show he has acted with due diligence. The burden of proof standard is rather harsh, as stated by the court the deadline was presumptively constitutional and all aliens were therefore also presumptively deemed to have been given notice of the deadline.
In addition, Tapia failed to show due diligence for the tolling. We will apply equitable tolling in situations where, despite all due diligence, the party invoking equitable tolling is unable to obtain vital information bearing on the existence of the claim.
Yi Song, Esq.