VALERIANO v. GONZALES
The Ninth Circuit Court of Appeals today released an opinion in VALERIANO v. GONZALES, No. 03-72277, an administrative appeal. The panel consisted of Andrew J. Kleinfeld and Raymond C. Fisher, Circuit Judges, and Milton I. Shadur, Senior District Judge.
KLEINFELD, Circuit Judge:
We decide that an alien who delays filing a motion to reopen under 8 C.F.R. § 1003.2(c)(1) while awaiting the government’s response to his counsel’s request to join the motion to reopen under 8 C.F.R. § 1003.2(c)(3)(iii) until the deadline is past is not entitled to equitable tolling. Facts Valeriano is a 34-year-old native and citizen of Mexico with three United States citizen children. He entered the United States on June 25, 1988, and has resided here continuously since that time. Nine years after Valeriano got here, in February 1997, the INS served an Order to Show Cause why he was not deportable. An Immigration Judge found him deportable as charged and granted him voluntary departure in 1999. Valeriano appealed, but his appeal was filed six days late, so the BIA deemed it untimely. That is where our case begins. Valeriano filed a motion to reconsider, accompanied by a declaration from a person who states that she is a paralegal at Valeriano’s lawyer’s office. She says that she sent Valeriano’s notice of appeal by FedEx December 13, and that it was delivered December 14, which would be timely. But as proof she attached documents that prove the opposite of what she said. She submitted a letter from FedEx saying that on December 14 it had indeed delivered a package she had shipped, but that the package had been sent December 11, not December 13. This package could not . . .