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Keywords

tortjurisdictionattorneyappealmotionasylum
tortjurisdictionattorneyappealmotionasylum

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Wenqin Sun v. Mukasey

Facts

Petitioner Wenqin Sun is a native and citizen of China, and she is also a battered spouse. The Board of Immigration Appeals ('BIA') affirmed the Immigration Judge's ('IJ's') denial of asylum, withholding of removal, and relief under the Convention Against Torture, and entered a final order of removal in 2004. Sun did not seek review of that decision and now seeks review of the BIA's denial, on timeliness grounds, of her motion to reopen removal proceedings on the basis of her successful application to qualify for an adjustment of status under the Violence Against Women Act ('VAWA'), 8 U.S.C. 1154. Her motion to reopen was not filed within the year provided for in 8 U.S.C. 1229a(c)(7)(C)(iv)(III) because of errors of counsel.

Petitioner Wenqin Sun is a native and citizen of China, and she is also a battered spouse. The Board of Immigration Appeals ('BIA') affirmed the Immigration Judge's ('IJ's') denial of asylum, withholding of removal, and relief under the Convention Against Torture, and entered a final order of removal in 2004. Sun did not seek review of that decision and now seeks review of the BIA's denial, on timeliness grounds, of her motion to reopen removal proceedings on the basis of her successful application to qualify for an adjustment of status under the Violence Against Women Act ('VAWA'), 8 U.S.C. 1154. Her motion to reopen was not filed within the year provided for in 8 U.S.C. 1229a(c)(7)(C)(iv)(III) because of errors of counsel.

Issue

Whether the BIA erred in denying Sun's motion to reopen removal proceedings as untimely and whether the fugitive disentitlement doctrine applies to her case.

Whether the BIA erred in denying Sun's motion to reopen removal proceedings as untimely and whether the fugitive disentitlement doctrine applies to her case.

Rule

The court has jurisdiction under 8 U.S.C. 1252(a) to review the BIA's denial of a motion to reopen, and equitable tolling applies when a petitioner acts promptly after discovering counsel's error.

The court has jurisdiction under 8 U.S.C. 1252(a) to review the BIA's denial of a motion to reopen, and equitable tolling applies when a petitioner acts promptly after discovering counsel's error.

Analysis

The court rejected the government's argument that Sun was a fugitive and therefore not entitled to review. It found that Sun acted with diligence after retaining new counsel who recognized the errors of her previous attorneys. The BIA's assumption regarding the timing of Sun's actions was incorrect, and thus she was entitled to equitable tolling.

The court rejected the government's argument that Sun was a fugitive and therefore not entitled to review. It found that Sun acted with diligence after retaining new counsel who recognized the errors of her previous attorneys. The BIA's assumption regarding the timing of Sun's actions was incorrect, and thus she was entitled to equitable tolling.

Conclusion

The court granted the petition for review and remanded the case to the BIA for consideration of the merits of Sun's motion to reopen.

The court granted the petition for review and remanded the case to the BIA for consideration of the merits of Sun's motion to reopen.

Who won?

Wenqin Sun prevailed in the case because the court found that the BIA had made an erroneous factual assumption regarding her diligence and entitlement to equitable tolling.

Wenqin Sun prevailed in the case because the court found that the BIA had made an erroneous factual assumption regarding her diligence and entitlement to equitable tolling.

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