Splits Noted in the Circuits - 3/10-3/13

• Does Equitable Tolling of a Deadline Reset the Entire Clock? Gao v. Mukasey, 2008 WL 638061, *4 (7th Cir. Mar. 11, 2008).

Even the prolix Judge Posner finds the history of this immigration case too tangled to recount, so you know it has some interesting turns in there. Nonetheless, the basics are as follows – an IJ denied Yuan Gao asylum. Mr. Gao moved to reopen sixteen days after the 90 day deadline. The IJ denied his motion as untimely and the BIA summarily affirmed. Gao asserts that the delay should be excused because he did not know his first counsel had been ineffective, giving rise to a claim for relief, until he met with a new lawyer fifteen days after the clock had started to run.

The writing machine (49 books!) returns to form, starting down the path of evaluating whether IJs have the authority to grant extensions (because tolling “will rarely be available” if extensions are available) before changing gears without deciding that question. Instead, Judge Posner affirms the BIA, noting that seventy-five days should have been enough time to file the motion, and that equitable tolling only extends the deadline as much as necessary. The Multiloquent Magistrate notes that the circuits are split on this issue, however, with CAs 9,11 restarting the entire clock and CAs 6,7,8 not.

• Does a Due Process Right to Be Informed of the Availability of Discretionary Relief Exist? What Degree of Reliance on the Availability of Discretionary Relief Is Necessary to Avoid Giving its Repeal Retroactive Effect? United States v. De Horta Garcia, 2008 WL 656909 (7th Cir. Mar. 13, 2008)

This case notes these two distinct splits. Although Judge Rovner concurs in the result based on prior circuit precedent, he disagrees with the Seventh’s position on both splits and urges reconsideration.

Jose De Horta Garcia was a permanent resident alien arrested in November 1995 (the dates are actually important) during a drug sting. In April 1996, Congress repealed INA § 212(c) which would have permitted De Horta Garcia to appeal for discretionary relief from any removal order resulting from his conviction. Horta pled guilty to his drug crimes in June 1996 and was ordered removed. He then illegally re-entered the U.S. twice, and was arrested twice (he served time once). This case arises out of his challenge to validity the original deportation order. De Horta Garcia asserts that the deportation order was invalid because he was denied his right to seek discretionary relief under the repealed § 212(c).

A collateral attack on a deportation order, as here, is only permitted if the alien satisfies three conditions. One of these conditions is that the entry of the deportation order was fundamentally unfair. De Horta Garcia asserts that the failure of the IJ to inform him of his right to seek discretionary relief under § 212(c) satisfies that condition. The Seventh, along with CAs 4,5,6,8,10,11, holds that such failure does not violate due process; only the CAs 2 and 9 disagree.

Even though the panel finds collateral review of the deportation order procedurally barred, they proceed to discuss whether or not De Horta Garcia could have obtained discretionary relief at the time of his deportation. The repeal of § 212(c) took place after De Horta Garcia’s criminal conduct, but before he pled guilty. Relying on previous precedent, the panel holds that the repeal has retroactive effect absent a showing of actual affirmative reliance by the alien, and thus De Horta Garcia could not have obtained relief. The Second and Ninth Circuit apply the same subjective actual reliance test, whereas the Third, Sixth, and Tenth Circuits only require objectively reasonable reliance. Finally, the Fourth Circuit has rejected any reliance test at all when conducting a retroactivity inquiry. Interestingly, the Supreme Court has denied cert for many of the cases on all sides of this split even though St. Cyr seems to suggest that the repeal ought not to be given retroactive effect.