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Keywords

jurisdictionlawyerstatutehearingmotionasylumvisastatute of limitations
jurisdictionlawyerstatutehearingmotionasylumvisastatute of limitations

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Pervaiz v. Gonzales

Facts

Abida Pervaiz, a Pakistani, came to the United States in 1991 on a tourist visa, overstayed, and eventually applied for asylum or alternatively for withholding of removal. On January 31, 2002, the immigration service informed her lawyer that the hearing on Pervaiz's claim of asylum would be held on January 24, 2003, at 1 p.m. A letter was sent to the lawyer stating that the hearing had been moved to 9 a.m. When Pervaiz and her lawyer arrived at 1 p.m., they were told that she had been ordered removed in absentia. Her lawyer moved to reopen because he did not receive notice of the time change, but the motion was denied. Pervaiz retained another lawyer who filed a second motion to reopen, which was denied as untimely.

Abida Pervaiz, a Pakistani, came to the United States in 1991 on a tourist visa, overstayed, and eventually applied for asylum or alternatively for withholding of removal. On January 31, 2002, the immigration service informed her lawyer that the hearing on Pervaiz's claim of asylum would be held on January 24, 2003, at 1 p.m. A letter was sent to the lawyer stating that the hearing had been moved to 9 a.m. When Pervaiz and her lawyer arrived at 1 p.m., they were told that she had been ordered removed in absentia. Her lawyer moved to reopen because he did not receive notice of the time change, but the motion was denied. Pervaiz retained another lawyer who filed a second motion to reopen, which was denied as untimely.

Issue

Whether the 180-day deadline for filing a motion to reopen in absentia proceedings is jurisdictional and whether it can be subject to equitable tolling.

Whether the 180-day deadline for filing a motion to reopen in absentia proceedings is jurisdictional and whether it can be subject to equitable tolling.

Rule

The 180-day deadline is not jurisdictional; it is merely a statute of limitations and is therefore subject to equitable tolling.

The 180-day deadline is not jurisdictional; it is merely a statute of limitations and is therefore subject to equitable tolling.

Analysis

The court applied the rule by determining that the 180-day deadline for filing a motion to reopen was not jurisdictional and could be tolled under equitable principles. The court noted that the first lawyer's failure to receive notice of the time change could reasonably lead to the expectation that the first motion to reopen would be granted. The court also considered the delay in filing the second motion and found that it did not prejudice anyone, allowing for the possibility of tolling the deadline.

The court applied the rule by determining that the 180-day deadline for filing a motion to reopen was not jurisdictional and could be tolled under equitable principles. The court noted that the first lawyer's failure to receive notice of the time change could reasonably lead to the expectation that the first motion to reopen would be granted. The court also considered the delay in filing the second motion and found that it did not prejudice anyone, allowing for the possibility of tolling the deadline.

Conclusion

The court granted the alien's petition for review and remanded the case to the BIA for further proceedings consistent with this opinion.

The court granted the alien's petition for review and remanded the case to the BIA for further proceedings consistent with this opinion.

Who won?

Pervaiz prevailed in the case because the court found that the 180-day deadline was not jurisdictional and could be subject to equitable tolling, allowing her to pursue her claim.

Pervaiz prevailed in the case because the court found that the 180-day deadline was not jurisdictional and could be subject to equitable tolling, allowing her to pursue her claim.

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