EMELI KWASI ATTIPOE v. BARR, 2d. Cir., 12-19-19, published
PANEL: POOLER, LOHIER, and CARNEY, Circuit Judges.
OPINION BY: Judge Rosemary Pooler
KEY QUOTE:
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Here, as in Iavorski, nothing in the text of Section 545(d)(2) itself, or in its
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4 legislative history, indicates that Congress intended the appeal filing deadline to
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5 be jurisdictional. To the contrary, the House Conference Report states that
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6 “[u]nless the Attorney General finds reasonable evidence to the contrary, the
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7 regulations must state that administrative appeals be made within 30 days, except
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8 that the appellate body may, upon motion, extend such period up to 90 days, if good cause
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9 is shown by the movant.” H.R. Rep. No. 101‐955 at 133 (emphasis added). The
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10 legislative history thus indicates that Congress was amenable to the idea of
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11 extending the time to file an appeal past the deadline upon a showing of good
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12 And the BIA may, sua sponte, decide to accept late filings under the self‐
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13 certification process. It could not accept any late filings—exceptional
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14 circumstances or not—if the filing deadline truly was jurisdictional.
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15 We therefore extend Iavorksi’s interpretation of Section 545(d)(1) to its
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16 sister subsection, Section 545(d)(2), and hold that the BIA must consider the
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17 principles of equitable tolling when an untimely appeal is filed and the petitioner
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18 raises the issue, as Attipoe did here. We remand to the BIA to consider whether 15
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1 equitable tolling allows consideration of Attipoe’s late‐filed appeal. The BIA is
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2 free to develop the factors it will apply in considering equitable tolling, although
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3 we note that it need not start from scratch. In Holland, the Supreme Court set out
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4 standards for courts to apply in determining whether equitable tolling is
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5 appropriate: (1) a showing that a petitioner “has been pursuing his rights
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6 diligently, and (2) that some extraordinary circumstance stood in his way.” 560
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7 S. at 649 (internal quotation marks omitted). And in the context of a late
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8 motion to reopen, we have held that petitioners seeking equitable tolling must
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9 demonstrate (1) that their constitutional rights to due process were violated by
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10 the conduct of counsel; and (2) that they exercised due diligence during the
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11 putative tolling period. Iavorski, 232 F.3d at 135; see also Rashid v. Mukasey, 533
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12 3d 127, 132 (2d Cir. 2008) (requiring that a petitioner prove diligence during
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13 “both the period of time before the ineffective assistance of counsel was or
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14 should have been discovered and the period from that point until the motion to
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15 reopen is filed”); Cekic v. I.N.S., 435 F.3d 167, 170 (2d Cir. 2006) (requiring that
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16 petitioner “affirmatively demonstrate that he exercised reasonable due diligence
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17 during the time period sought to be tolled”). After it determines what the
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standards for equitable tolling under Section 1003.38 are, the BIA should determine whether Attipoe satisfies those standards.
CONCLUSION
For the reasons given above, the petition is granted, the BIA’s decision is vacated, and this matter remanded to the BIA for further proceedings consistent with this opinion.
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An honest, competent Attorney General would make fixing the glaring legal, quality control, and Due Process problems with the BIA’s performance “job one.”
Instead, White Nationalist political hacks Sessions, Whitaker, and Barr have maliciously pushed the BIA and the Immigration Courts to rush more defective unprofessional work product out the door faster, thereby guaranteeing unconstitutional miscarriages of justice and numerous wrongful removals.
Improper, mindless, designed to fail “haste makes waste” gimmicks by the regime actually make the astounding 1.3 million case Immigration Court backlog much much worse, rather than addressing it in a rational and professional manner consistent with Due Process of law.
That’s especially true in a system where many individuals are improperly and unconstitutionally forced to appear without assistance of counsel and many others suffer from “underperformance” of counsel in a totally stressed and unfair system where the problems are overwhelmingly caused by our Government‘s “maliciously incompetent” performance, but the consequences fall almost exclusively and most heavily on the individual victims of U.S. Government malfeasance.
The idea the the BIA deserves “deference” as a fair, impartial, “expert” tribunal is beyond absurd. It’s a flat out abdication of legal duty by the Article III Courts of Appeals. When will they finally put a stop to this mockery of justice and remove the biased, unethical, and malicious DOJ prosecutor from improper and unconstitutional control over the Immigration “Courts?” How many illegal removals on their watch are too many for the complicit and privileged “life-tenured ones?”
What if it were them or their families suffering and being abused in this ongoing national disgrace that passes for a “court system?”
PWS
12-20-19