Oscar Socop-Gonzalez v. Immigration and Naturalization Service

Opinion by Judge PREGERSON: Dissent by Judge O’SCANNLAIN

Before appealing to a circuit court, an alien may seek relief from a decision of the Board of Immigration Appeals (“BIA”) by filing a motion to reopen his or her deportation proceedings. 1 8 C.F.R. § 3.2 (a). The purpose of a motion to reopen is to present new facts or evidence that may entitle the alien to relief from deportation. INA § 240(c)(6)(B), 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 3.2 (c)(1). An alien may use a motion to reopen to challenge the finding of deporta-bility itself, or to show that the alien is newly eligible for relief from deportation. Iris Gomez, The Consequences of Nonappearance: Interpreting New Section 2f2B of the Immigration and Nationality Act, 30 San Diego L.Rev. 75, 117-18 (1993).

In 1996, the Department of Justice promulgated regulations restricting an alien *1181 to one motion to reopen, and requiring the motion to be filed within ninety days of the BIA’s decision. 8 C.F.R. § 3.2 (c)(2). In this appeal, we reaffirm our prior holding that this ninety-day filing period is subject to equitable tolling. See Varela v. INS, 204 F.3d 1237, 1240 (9th Cir.2000). We also conclude that the…

joins, dissenting:

With respect, and with regret, I must dissent from the comb’s opinion; we simply don’t have jurisdiction under any of the theories advanced by the majority.

Socop-Gonzalez (“Socop”) first raised the issue of equitable tolling at oral argument before the en banc court; we have jurisdiction only over issues raised before the Board of Immigration Appeals (“BIA”). While Socop’s plight may be sympathetic, nothing, not even forty-four pages of energetic legal massage by the majority, can cure the jurisdictional defect in this case. Socop’s petition for review challenging the BIA’s denial of his motion to reopen should have been dismissed for lack of jurisdiction.

I

In April 1996, Socop filed a timely appeal with the BIA seeking review of the Immigration Judge’s decision denying his request for asylum and withholding of deportation. Socop, indeed acting on poor advice given to him by an INS officer, sought to withdraw his pending appeal with the BIA in April 1997. On May 5, 1997, the BIA granted his request, which constituted a final administrative determination in his case. Socop thereafter decided that he never should have withdrawn his appeal and filed a motion…

272 F.3d 1176 (9th Cir. 2001) OSCAR SOCOP-GONZALEZ, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT No. 98-70782 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 7, 2000 Opinion Filed March 27, 2000 Rehearing En Banc Granted September 29, 2000 Argued and Submitted December 20, 2000 Filed December 5, 2001 [Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted] Robert B. Jobe, San Francisco, California, for the petitioner. David W. Odgen, Assistant Attorney General, Civil Division, Washington, D.C. (argued), and Hugh G. Mullane, Senior Litigation Counsel, Civil Division, Washington, D.C. (brief), for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. INS No. App-fzq-vxl Before: Schroeder, Chief Judge, and Pregerson, Reinhardt, O'Scannlain, Hawkins, Tashima, Silverman, McKeown, Wardlaw, Paez, and Berzon, Circuit Judges. Opinion by Judge Pregerson; Dissent by Judge O'Scannlain PREGERSON, Circuit Judge: 1 Before appealing to a circuit court, an alien may seek relief from a decision of the Board of Immigration Appeals ("BIA") by filing a motion to reopen his or her…