Juana Hernandez v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 12a0091n.06

No. 10-3662

FILED

UNITED STATES COURT OF APPEALS Jan 25, 2012

FOR THE SIXTH CIRCUIT

LEONARD GREEN, Clerk

)

JUANA HERNANDEZ, )

)

Petitioner–Appellant, )

) ON PETITION FOR REVIEW FROM

v. ) AN ORDER OF THE BOARD OF

) IMMIGRATION APPEALS

ERIC H. HOLDER, JR., )

)

Respondent–Appellee. )

)

Before: MARTIN and GIBBONS, Circuit Judges; STEEH, District Judge.*

JULIA SMITH GIBBONS, Circuit Judge. Petitioner-Appellant Juana Hernandez petitions

for review of a Board of Immigration Appeals (“BIA”) order that affirmed an Immigration Judge’s

(“IJ”) decision denying her application for Temporary Protected Status (“TPS”) and ordering her

removed to El Salvador. The IJ denied relief and the BIA affirmed on the ground that Hernandez’s

TPS application was untimely. Hernandez argues that the IJ erred in denying her TPS application

and in failing to equitably toll the deadline for TPS registration.

For the reasons set forth below, we deny Hernandez’s petition for review.

*

The Honorable George Caram Steeh, III, United States District Judge for the Eastern District

of Michigan, sitting by designation.

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I.

Hernandez, a citizen of El Salvador, came to the United States on January 11, 2001, on a

visitor visa and has remained in this country continuously since then. Hernandez’s visitor visa

expired in July of 2001, and she did not apply for a change of status or extension of status at that

time. Hernandez has thus been “out of status” since July of 2001.

On January 13, 2001, and February 13, 2001, El Salvador was devastated by two major

earthquakes, leading the Attorney General to designate El Salvador under a TPS program effective

March 9, 2001. See 66 Fed. Reg. 14,214 (March 9, 2001).1 El Salvador’s initial TPS designation

was effective until September 9, 2002. Id.

On August 23, 2002, seventeen days before El Salvador’s initial TPS designation expired,

Hernandez filled out and sent to INS a TPS application with the assistance of Deborah Hartman, a

staff member at an organization called El Centro de Familia. However, Hernandez’s application was

returned to her in December of that year because a required signature and the required fee were

missing. When the application was returned, Hernandez, with the help of Maria Delgado, also a

member of El Centro de Familia’s staff, supplied the missing signature and sent the application back

to INS with the correct fee. Hernandez sent the application back to INS around Christmas of 2002,

1

The Attorney General may designate a foreign state for TPS if the state is experiencing

ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions.

See 8 U.S.C. § 1254a(b). An alien who is a national of a foreign state designated for TPS may apply

for temporary protected status, which protects the alien from removal during the period in which the

state’s TPS remains in effect. 8 U.S.C. § 1254a(a).

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and the application was received at INS’s Nebraska Service Center on December 30, 2002.2 Neither

Hartman nor Delgado are attorneys.

On March 24, 2003, INS notified Hernandez of its intent to deny her application for TPS on

the ground that Hernandez failed to qualify for late registration of TPS. Hernandez then sought free

help in submitting her application from a lawyer in Detroit and from a Michigan church called

Mount Zion.

On August 9, 2004, Hernandez filed another TPS application. On October 4, 2004, INS

again advised Hernandez of its intent to deny her TPS application because she was not eligible for

late registration. On November 22, 2004, Hernandez’s second application for TPS was denied.

Hernandez appealed the denial of her second TPS application. In a letter submitted with her appeal,

Hernandez claimed that her 2002 TPS application was filed late because Hartman had addressed it

to the wrong building. Hernandez acknowledged in her letter that her December 2002 re-submission

of her application was filed after the initial TPS registration period expired. The Administrative

Appeals Office dismissed her appeal, and the U.S. Citizenship and Immigration Services sent

Hernandez notice of this decision on January 26, 2006.

2

Hernandez’s 2002 TPS application contains two date stamps reflecting the dates on which

the document was received by INS. The first date stamp of September 27, 2002—apparently the date

on which Hernandez’s first TPS application was received by INS—is lined out. The second date

stamp reflects receipt of the application by INS on December 30, 2002.

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The Department of Homeland Security (“DHS”) initiated removal proceedings against

Hernandez on April 13, 2006.3 A hearing was held before Judge Elizabeth Hacker of the United

States Immigration Court in Detroit, Michigan, and Judge Hacker issued an oral decision denying

Hernandez’s application for TPS and ordering her removed and deported to El Salvador. The IJ held

that Hernandez had failed to timely file a complete TPS application by the September 9, 2002, filing

deadline and that Hernandez did not qualify for late registration. Hernandez appealed.

The Board of Immigration Appeals (“BIA”) dismissed Hernandez’s appeal, adopting and

affirming IJ Hacker’s decision. The BIA concluded that Hernandez had not established that her 2002

TPS application was filed late as the result of the ineffective assistance of counsel. The BIA noted

that Hernandez’s claim that her application was returned to her because Hartman sent it to the wrong

address conflicted with her testimony that her application was returned because it was missing a

signature and did not have the correct fee. Given these inconsistencies, the BIA concluded,

Hernandez had not established that her initial TPS application was untimely because its preparer

improperly addressed the envelope in which the application was sent. This appeal followed.

Hernandez asserts on appeal that the IJ erred in denying Hernandez’s TPS application and erred in

declining to equitably toll the September 9, 2002, deadline for filing for TPS.

3

On June 1, 2006, Hernandez filed a lawsuit against DHS and United States Citizenship and

Immigration Services in the United States District Court for the Eastern District of Michigan seeking

judicial review of the denial of her application for TPS. Defendants moved to dismiss the lawsuit

on the ground that the district court lacked jurisdiction, and the district court granted their motion.

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II.

This court has exclusive jurisdiction over final orders of removal pursuant to 8 U.S.C. §

1252(a)(1) and 28 U.S.C. § 2341 et seq.

Where the BIA adopts the IJ’s reasoning and provides additional commentary, we review the

IJ’s decision, as supplemented by the BIA, as the final administrative order. Ceraj v. Mukasey, 511

F.3d 583, 588 (6th Cir. 2007); Gilaj v. Gonzales, 408 F.3d 275, 282–83 (6th Cir. 2005). Questions

of law are reviewed de novo, but the IJ’s factual findings will be affirmed if supported by substantial

evidence. Ceraj, 511 F.3d at 588. We will only reverse an IJ’s factual determinations if we find

“that the evidence not only supports a contrary conclusion, but compels it.” Id. (citation and internal

quotation marks omitted) (emphasis in original).

III.

Hernandez argues that the IJ erred in denying her application for TPS because Hernandez

timely filed her TPS application on August 23, 2002, Hartman sent the application to the wrong

address, and INS unreasonably delayed in returning the application to her four months later, causing

her to miss the September 9, 2002, filing deadline. Hernandez further argues that any regulations

relied on to deny her application are unlawful because they are inconsistent with the clear intent to

protect Salvadorians, as expressed by the designation of El Salvador for TPS.

On March 9, 2001, the Attorney General designated El Salvador as a TPS country due to

damage caused by earthquakes that occurred in January and February of that year. 66 Fed. Reg.

14,214 (March 9, 2001). Nationals of El Salvador who had been “continuously physically present”

in the United States since March 9, 2001, and had “continuously resided” in the United States since

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February 13, 2001, could apply for TPS within a registration period beginning on March 9, 2001,

and ending on September 9, 2002. Id.

Nationals of El Salvador who did not file a TPS application during the initial registration

period could register during a subsequent extension of El Salvador’s TPS designation only if, during

the initial registration period,

the applicant: (1) [was] a nonimmigrant; (2) had been granted voluntary departure

status or any relief from removal; (3) had made an application for change of status,

adjustment of status, asylum, voluntary departure, or any relief from removal that was

pending or subject to further review or appeal; (4) was a parolee or had a pending

request for parole; or (5) was a spouse or child of an alien eligible to be a TPS

registrant.

Id.

An applicant for late registration was required to register within sixty days of the expiration

or termination of one of the conditions described in items (1) through (5) above. Id. El Salvador’s

TPS designation was extended seven times and is currently in effect until March 9, 2012. 67 Fed.

Reg. 46,000 (July 11, 2002); 68 Fed. Reg. 42,071 (July 16, 2003); 70 Fed. Reg. 1,450 (Jan. 7, 2005);

71 Fed. Reg. 34,637 (June 15, 2006); 72 Fed. Reg. 46,649 (Aug. 21, 2007); 73 Fed. Reg. 57,128

(Oct. 1, 2008); 75 Fed. Reg. 39,556 (July 9, 2010). However, in order to be covered by these

extensions, an alien must have registered during the initial registration period or must have qualified

under the late registration requirements. 66 Fed. Reg. 14,214 (March 9, 2001). Hernandez does not

argue on appeal that she qualified for late registration.

The IJ properly found that Hernandez failed to timely file a complete TPS application during

the initial registration period. The first date stamp on Hernandez’s 2002 TPS application—reflecting

the date on which her application was received by INS—is September 27, 2002. Hernandez’s

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application was thus received after the September 9, 2002, deadline for initial registration. The only

evidence Hernandez presented to support her claim that her application was timely filed was her

testimony that she mailed the application, with Hartman’s help, on August 23, 2002. However,

Hernandez claimed that Hartman mailed her application to the wrong building, which could

potentially explain its tardy receipt. Hernandez presented no other evidence that her application was

timely filed. Further, Hernandez conceded in removal proceedings that the application she sent on

August 23, 2002, was incomplete because it lacked a required signature and the proper filing fee.

Thus, there was substantial evidence in the record from which the IJ could conclude that Hernandez

failed to file a complete TPS application by the filing deadline.

Hernandez does not argue that her application was received in time; rather, she argues that

INS unreasonably delayed in returning it to her to allow her to make necessary corrections, causing

her to miss the September 9, 2002, deadline. Hernandez cites no authority for the proposition that

immigration agencies must expeditiously return deficient TPS applications to applicants to allow

them to remedy the deficiencies before certain deadlines. According to her own testimony,

Hernandez sent her application on August 23, 2002, a mere seventeen days before the initial

registration deadline and over seventeen months after the initial registration period opened. If

anyone unreasonably delayed in this case it was Hernandez, not INS.

Hernandez next argues that any regulation relied on to deny her TPS in this case is unlawful

since the regulation would be inconsistent with the Immigration Act and the intent to protect

Salvadorians evidenced by the designation of El Salvador for TPS. This argument is meritless. In

setting an initial registration deadline of September 9, 2002, the Attorney General clearly expressed

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his intent to limit the grant of TPS to those who complied with that deadline. See 66 Fed. Reg.

14,214 (March 9, 2001). The Attorney General established an eighteen-month window in which

Salvadorians could apply for TPS, and Hernandez failed to submit a complete application within that

window, despite being present in the United States the entire time. Hernandez has cited no authority

to support her claim that enforcing the September 9, 2002, deadline is “contrary to” the intent of the

Attorney General or inconsistent with the Immigration Act.

Finally, Hernandez argues that she “did everything possible to timely register for TPS status.”

This is contradicted by the record. Although Hernandez entered the country in January of 2001 and

could have applied for TPS as early as March of 2001, she waited over seventeen months to apply

for TPS. Because Hernandez did not timely file a complete TPS application, the IJ properly denied

her temporary protected status.

IV.

Hernandez next argues that the IJ erred by failing to equitably toll the deadline for filing an

initial TPS application because the deadline was missed due to “technical errors and administrative

delays.” Hernandez asserts that the application deadline should have been equitably tolled because

INS unreasonably delayed in returning her TPS application to her for correction, causing her to miss

the September 9, 2002, deadline for initial registration. Hernandez further argues that the errors of

El Centro de Familia’s staff in helping her prepare her application entitled her to equitable tolling

because she was rendered ineffective assistance.

Administrative agency filing deadlines—such as the deadline for filing a TPS application—

may be equitably tolled in appropriate circumstances. See AAU WAC 06 007 70270, 2007 WL

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5337538 (INS) (equitably tolling TPS filing deadline because Los Angeles Office of Department of

Homeland Security failed to forward complete, timely filed TPS application to processing center);

see generally Hampton v. Caldera, 58 F. App’x 158, 160 (6th Cir. 2003) (noting that administrative

exhaustion requirements in Title VII context are subject to equitable tolling); Sawchik v. E.I. Dupont

Denemours & Co., 783 F.2d 635, 638 (6th Cir. 1986) (finding 300-day period for filing charge with

EEOC subject to equitable tolling). Therefore, the IJ erred when she implied that she lacked the

power to equitably toll the TPS filing deadline. However, this error was harmless, because

Hernandez presented insufficient evidence that she was entitled to equitable tolling of the TPS filing

deadline.

Hernandez’s TPS application was returned to her in December of 2002— approximately four

months after she submitted it—because it was missing a required signature and the required filing

fee. Although equitable tolling of a filing deadline may be appropriate where the government’s error

caused an applicant to miss a TPS filing deadline, see AAU WAC 06 007 70270, 2007 WL 5337538

(INS), Hernandez cites no authority for the proposition that the deadline should be tolled due to an

applicant’s errors that caused her to miss a filing deadline.

The facts of Hernandez’s case are materially distinguishable from those in the AAU case on

which she relies. In that case, the applicant filed a complete TPS application with the appropriate

filing fee during the TPS registration period, and the Los Angeles Office of DHS failed to forward

her application to the California Service Center. See id. The DHS office’s failure to forward the

application caused the applicant to miss the registration deadline. Id. By contrast, Hernandez does

not claim that the government erred in processing her application—she claims only that the

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government did not process her application and return it to her with notice of its deficiencies soon

enough to allow her to re-apply before the registration deadline. We are aware of no authority that

would support Hernandez’s argument that the government’s failure to quickly process and return a

deficient application entitles her to equitable tolling of the missed filing deadline.4

In the statute of limitations context, this court has only applied equitable tolling where “a

litigant’s failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond

that litigant’s control.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552,

560–61 (6th Cir. 2000). Hernandez has not shown that her failure to file a complete TPS application

before the deadline was due to circumstances beyond her control, further undermining her equitable

tolling argument.

Nor did Hernandez act with diligence in applying for TPS. See generally Gordillo v. Holder,

640 F.3d 700, 703–04 (6th Cir. 2011) (holding that alien must demonstrate diligence to be entitled

to equitable tolling of deadline to move to reopen or reconsider removal proceedings). Hernandez

delayed over seventeen months, from March 2001 to November 2002, before sending in her TPS

application. Hernandez essentially waited until the eleventh hour to submit an application, but faults

INS for failing to process and return her application in time for her to re-submit it by the September

4

It might be possible to infer government error in a situation in which the government’s delay

in processing an application was unusually protracted. However, in this case, INS would have had

to process Hernandez’s application and return it to her within seventeen days for her to have received

it before the filing deadline. Under these circumstances, no government error can reasonably be

inferred.

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9, 2002, deadline. Hernandez did not show that she acted with the diligence necessary to entitle her

to equitable tolling.

Finally, Hernandez argues that she was entitled to equitable tolling of the TPS filing deadline

because staff at El Centro de Familia rendered “ineffective assistance” when they misaddressed the

envelope in which her TPS application was mailed. In Matter of Lozada, the BIA held that a motion

to reopen or reconsider based on ineffective assistance of counsel in a deportation proceeding should

be supported by (1) an affidavit setting forth in detail the agreement that was entered between the

client and former counsel and (2) if the petitioner asserts that counsel’s handling of the case involved

a violation of ethical or legal responsibilities, an affidavit attesting to whether a complaint was filed

with appropriate disciplinary authorities regarding such representation, and if not, why not. 19 I. &

N. Dec. 637, 1988 WL 235454 (BIA). The Lozada decision also dictated that the alien’s former

counsel be informed of and given an opportunity to respond to the allegations of ineffective

assistance. Id. INS’s Administrative Appeals Office has applied the Lozada affidavit requirements

to claims that an applicant missed a TPS filing deadline due to the ineffective assistance of counsel.

See 2010 WL 6527359 (INS) (June 2, 2010).

Under the Lozada test, Hernandez has failed to show she is entitled to equitable tolling of

the TPS filing deadline due to ineffective assistance. First, Hernandez testified that neither of the

women who helped her at El Centro de Familia—Hartman and Delgado—were attorneys, and there

is no evidence in the record that Hartman or Delgado was an “accredited representative” under 8

C.F.R. §§ 1292.1(a)(4) and 1292.2(d). See Al Roumy v. Mukasey, 290 F. App’x 856, 861–63 (6th

Cir. 2008) (applying Lozada to claim that ineffective assistance was provided by non-attorney

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representative accredited by the BIA). Hernandez filed no grievance against Hartman or Delgado

related to their alleged “ineffective assistance.” There is also no evidence in the record that

Hernandez entered into an agreement with the staff of El Centro de Familia to obtain legal

representation. Thus, Hernandez is not entitled to equitable tolling of the TPS filing deadline on the

ground of ineffective assistance.

V.

For the foregoing reasons, we deny Hernandez’s petition for review.

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