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Keywords

appealmotionasylumvisa
statutemotionhabeas corpusasylumvisa

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Kuusk v. Holder

Facts

Svetlana Kuusk entered the U.S. on a J-1 visa in 2003 and overstayed. After being served with a notice to appear before an immigration judge, she applied for asylum, which was denied. During her appeal, she married a U.S. citizen and received advice from a USCIS officer suggesting she could apply for a marriage-based green card. However, she failed to file a motion to reopen her case within the required 90 days after the BIA's final order of removal.

On June 1, 2003, Kuusk entered the United States on a four-month J-1 visa. She overstayed her visa. On October 12, 2005, she was served with a notice to appear before an immigration judge ('IJ'). Kuusk conceded her removability before the IJ, but applied for asylum and withholding of removal pursuant to 8 U.S.C. 1158 and 1231(b)(3)(2006), respectively. The IJ denied both applications.

Issue

Whether the BIA erred in applying the standard set forth in the Harris decision to deny Kuusk equitable tolling for her motion to reopen.

Whether the BIA erred in applying the standard set forth in the Harris decision, which was a habeas corpus proceeding, to denying an alien equitable tolling for her motion to reopen.

Rule

The court applied the Harris standard for equitable tolling, which requires showing that wrongful conduct by the opposing party prevented timely filing or that extraordinary circumstances beyond the party's control made timely filing impossible.

The BIA concluded that Kuusk had failed to show that: (1) wrongful conduct by the opposing party prevented her from timely asserting her claim; or (2) extraordinary circumstances beyond her control made it impossible for her to comply with the statutory time limit.

Analysis

The court found that Kuusk did not meet the Harris standard for equitable tolling. The BIA concluded that she failed to demonstrate that wrongful conduct by the opposing party prevented her from timely asserting her claim or that extraordinary circumstances beyond her control made it impossible to comply with the statutory time limit. The court noted that the advice given by the USCIS officer was not incorrect and did not excuse her from the requirement to file a motion to reopen.

The BIA denied Kuusk's motion. Applying the equitable tolling standard that we have applied in other contexts, the BIA concluded that Kuusk had failed to show that: (1) wrongful conduct by the opposing party prevented her from timely asserting her claim; or (2) extraordinary circumstances beyond her control made it impossible for her to comply with the statutory time limit.

Conclusion

The court denied Kuusk's petition for review, affirming the BIA's decision that it did not err in applying the Harris standard.

We deny Kuusk's petition for review.

Who won?

The government prevailed in the case because the court upheld the BIA's application of the Harris standard, finding that Kuusk did not provide sufficient justification for equitable tolling.

The Government and Kuusk also agree that the statute contains a limitations period that can be equitably tolled; they disagree, however, as to what standard must be met to establish a basis for equitable tolling.

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