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Keywords

attorneylawyerprecedentappealmotionasylum
attorneylawyerprecedentappealmotionasylum

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Gao v. Mukasey

Facts

The alien filed his motion to reopen 106 days after the IJ ordered him to be removed. The alien contended that equitable tolling applied to his case and that his delay should be excused because he did not discover that he had a basis for reopening his case until he met with a new lawyer and learned that his prior lawyer had rendered ineffective legal assistance. The court noted that pursuant to Seventh Circuit precedent, equitable tolling extended the time for filing a motion to reopen but did not reset and restart the 90 day time period under 8 U.S.C.S. 1229a(c)(7)(C)(i) and 8 C.F.R. 1003.23(b)(1).

The alien filed his motion to reopen 106 days after the IJ ordered him to be removed. The alien contended that equitable tolling applied to his case and that his delay should be excused because he did not discover that he had a basis for reopening his case until he met with a new lawyer and learned that his prior lawyer had rendered ineffective legal assistance. The court noted that pursuant to Seventh Circuit precedent, equitable tolling extended the time for filing a motion to reopen but did not reset and restart the 90 day time period under 8 U.S.C.S. 1229a(c)(7)(C)(i) and 8 C.F.R. 1003.23(b)(1).

Issue

Whether the Board of Immigration Appeals erred in dismissing, as untimely, the petitioner's appeal from the immigration judge's denial of his motion to reopen the asylum proceeding.

Whether the Board of Immigration Appeals erred in dismissing, as untimely, the petitioner's appeal from the immigration judge's denial of his motion to reopen the asylum proceeding.

Rule

The doctrine of equitable tolling can extend the time for filing a motion to reopen, but it does not reset the 90-day time limit set by 8 U.S.C. 1229a(c)(7)(C)(i) and 8 C.F.R. 1003.23(b)(1).

The doctrine of equitable tolling can extend the time for filing a motion to reopen, but it does not reset the 90-day time limit set by 8 U.S.C. 1229a(c)(7)(C)(i) and 8 C.F.R. 1003.23(b)(1).

Analysis

The court applied the rule by determining that the alien had not exercised due diligence in filing his motion to reopen. He learned of the ground for reopening his case approximately 30 days after the removal order was entered, and the court found that it should not have taken him so long to file his motion. The court emphasized that equitable tolling does not reset the clock and that the alien's delay was not justified.

The court applied the rule by determining that the alien had not exercised due diligence in filing his motion to reopen. He learned of the ground for reopening his case approximately 30 days after the removal order was entered, and the court found that it should not have taken him so long to file his motion. The court emphasized that equitable tolling does not reset the clock and that the alien's delay was not justified.

Conclusion

The court denied the alien's petition for review.

The court denied the alien's petition for review.

Who won?

The U.S. Attorney General prevailed in the case because the court found that the alien's motion to reopen was untimely and that equitable tolling did not apply.

The U.S. Attorney General prevailed in the case because the court found that the alien's motion to reopen was untimely and that equitable tolling did not apply.

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