mmigration Council Urges the Supreme Court to Protect Noncitizens’ Ability to Reopen Their Cases

March 11, 2015

Washington, D.C.–Last Friday, the American Immigration Council, the American Immigration Lawyers Association, and the National Immigration Project of the National Lawyers Guild, represented by the law firm of Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A., submitted an amicus brief to the U.S. Supreme Court in Mata v. Holder. Petitioner Noel Mata sought equitable tolling of the deadline to file a motion to reopen based upon ineffective assistance of counsel. After the BIA denied his request, the Fifth Circuit Court of Appeals held that it lacked jurisdiction to review the decision.

As nine courts of appeals have held, the 90-day reopening deadline is subject to equitable tolling, a long-recognized principle through which courts can waive the application of certain non-jurisdictional statutes of limitations where a person was diligent but nonetheless unable to comply with a filing deadline. However, the Fifth Circuit has never stated whether the reopening deadline is subject to tolling in a published decision. Instead, the court has held that it lacks jurisdiction over denials of requests for tolling, relying upon case law barring review of denials of requests for sua sponte reopening, a separate regulatory form of reopening. The Petitioner argues that the Fifth Circuit erred in holding that it has no jurisdiction. The government agrees with the Petitioner, and the Supreme Court has appointed amicus to argue in support of the Fifth Circuit’s judgment. The Court has set oral argument for April 29, 2015.

The brief of the Council and other amici explains the time-consuming process that noncitizens facing removal must go through to make an ineffective assistance of counsel claim and presents the stories of several immigrants whose requests for tolling of reopening deadlines originally were denied by the BIA. Fortunately, in each of these cases, the courts of appeals recognized both the availability of equitable tolling and the court’s jurisdiction to review denials of requests for tolling, and ultimately, the BIA reopened each of the cases. Now, these immigrants are living, working in and contributing to the United States as lawful permanent residents or citizens.