Monday, January 5, 2004
Deadline for Applying to Visa Lottery Program Not Subject to Equitable Tolling, Ninth Circuit Rules
By a MetNews Staff Writer
The one-year deadline for an immigrant to file an application for the 1997 Diversity Immigration Visa Lottery Program cannot be extended by invoking the doctrine of equitable tolling, the Ninth U.S. Circuit Court of Appeals has ruled.
Writing for a three-judge panel, Judge Robert R. Beezer Wednesday rejected the argument by Guatemalan citizen Gloria Maribel Carrillo-Gonzalez—who had been selected under the lottery program—that her failure to complete the application process should be excused because it resulted from fraud committed by a notary.
An immigration judge properly rejected that claim, Beezer said, since the doctrine of equitable tolling has no application to a congressionally-mandated immigration program deadline.
“An IJ may not invoke equitable powers to override Congress’s explicit public policy determinations, reflected in the statutory framework for conferring citizenship,” Beezer declared.
Beezer cited INS v. Pangilinan, 486 U.S. 875, a case in which the Supreme Court held that courts lacked equitable power to confer citizenship on Filipino nationals who served with the United States Armed Forces during World War II under a special immigration statute that had expired.
“The Supreme Court states in Pangilinan that ‘[t]he power to make someone a citizen of the United States has not been conferred upon the federal courts, like mandamus or injunction, as one of their generally applicable equitable powers,’” Beezer commented.
Carrillo-Gonzalez entered the United States illegally in 1991 and sought asylum. When she was selected under the lottery program she withdrew her asylum request and asked for an adjustment of status based on her lottery number.
Beezer noted that Carrillo-Gonzalez’s claim that fraud by a notary caused her to miss the opportunity to obtain a visa under the lottery program lacked support in the record.
“Carrillo-Gonzalez forwards this claim solely through the argument of her counsel, which does not constitute evidence,” the judge explained. “Even if Carrillo-Gonzalez’s allegations about being defrauded were true, because she was unable to present a visa to the immigration court, the IJ had no authority—to grant an adjustment of status. The IJ was required to comply strictly with the statute’s unambiguous terms.”
Beezer said two cases cited by Los Angeles sole practitioner Howard Johnson, who represented Carrillo-Gonzalez, were “factually inapposite.”
While Beezer conceded that in both Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999), and Varela v. INS, 204 F.3d 1237 (9th Cir. 2000), courts invoked equity to excuse errors by non-attorney representatives in immigration cases, the judge pointed out that those cases involved the waiver of page limits and deadlines in motions to reopen before the Board of Immigration Appeals.
“The use of equity in each case simply allows further consideration before the BIA. It does not infringe upon Congress’s power to determine how and when an applicant may become a citizen of the United States. Neither case provides controlling legal authority for Carrillo-Gonzalez’s assertion that the IJ should have equitably tolled the DV Lottery Program’s clear, statutory deadline. Carrillo-Gonzalez was not entitled to a diversity visa after her eligibility for such a visa had expired.”
The case is Carrillo-Gonzalez v. INS, 02-71997.
Copyright 2004, Metropolitan News Company