Making up for lost time: a bright-line rule for equitable tolling in immigration cases.

• Author: Zhou, David

INTRODUCTION

In March 2008, the Seventh Circuit upheld the denial of a motion to reopen an asylum case that had been filed sixteen days late. (1) The appellant, Yuan Gao, claimed his delay was due to ineffective assistance of counsel. Yuan Gao, who feared that he would be persecuted for his religious faith if removed to China, alleged that his immigration attorney had "misrepresented his intentions" when she withdrew his asylum request and agreed to voluntary departure during an immigration court hearing. (2) After spending one month trying to contact his original attorney, Yuan Gao hired a new lawyer. (3) Invoking the doctrine of equitable tolling, he asserted that the fruitless month he spent attempting to contact his attorney should not have counted toward the ninety-day filing deadline for motions to reopen. (4) The Seventh Circuit rejected his argument on the grounds that equitable tolling "does not reset the clock." (5)

The Seventh Circuit's decision in Yuan Gao v. Mukasey contributed to an existing circuit split over the impact of equitable tolling on many nonjurisdictional filing deadlines. (6) The Ninth and Eleventh Circuits have held that the filing period should freeze during the equitable tolling period. (7) Under this approach, Yuan Gao's clock would not have started running until Day 30, when he retained new counsel, and he would have had ninety days from that point forward to file his motion to reopen. The Seventh Circuit in Yuan Gao, however, endorsed a "reasonableness" standard, (8) which the Sixth and Eighth Circuits have also applied in employment discrimination cases. (9) For those courts, the movant must reasonably try to file the motion within the original time window, even if he has an equitable tolling claim.

This Comment argues that courts should adopt the minority "frozen clock" approach in the immigration context. The filing period for motions to reopen and to reconsider should restart only after the immigrant regains the ability to file such a motion. (10) Part I briefly overviews equitable tolling and explores why courts have differed when forming equitable tolling standards. Part II discusses how the Seventh Circuit in Yuan Gao erroneously analogized the asylum context to the employment discrimination context when determining its equitable tolling standard. Finally, Part III argues that the bright-line frozen clock rule has several advantages: it reduces uncertainty about the time window, promotes horizontal fairness across respondents, and ensures that every petitioner has the benefit of a full filing period.

1. EQUITABLE TOLLING AND THE CIRCUIT SPLIT

   Filing deadlines govern a huge swath of civil claims, ranging from discrimination under Title VII of the Civil Rights Act of 1964 to habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). (11) For these claims, plaintiffs must file within a prescribed time window, or risk forfeiting their claims forever. Exceptions have been made when deadlines would collide with the interests of justice. Courts created the doctrine of equitable tolling by recognizing that a plaintiff should be granted "additional time within which to sue (or meet some other deadline) if even diligent efforts on his part would not have enabled him to prepare and file his suit within the statutory period." (12) Statutes of limitations have been equitably tolled for a variety of reasons, including fraud, (13) ineffective assistance of counsel, (14) and mental incapacity. (15)

   The courts of appeals are split over when and how to apply equitable tolling. Three main justifications have been offered in support of the reasonableness standard, which inquires whether a respondent could reasonably be expected to file within the original time window. First, fairness dictates that the defendant should not be left in legal limbo past the filing deadline. According to the Seventh Circuit, statutes of limitations "protect important social interests in certainty, accuracy, and repose" and prevent private employers from being exposed to an extended period of liability. (16) Second, equitable tolling "is an exception to the rule, and should therefore be used only in exceptional circumstances." (17) Finally, the circuits have criticized plaintiffs who wait months to file their claims and then try to invoke equitable tolling. (18)

   On the other side of the split, the Ninth and Eleventh Circuits have emphasized the plain meaning of tolling to endorse the bright-line approach. (19) "Tolling means just what it says--the clock is stopped while tolling is in effect." (20) Moreover, the Ninth Circuit argues, the reasonableness standard creates uncertainty because the parties cannot "calculate with some certainty" the new filing deadline after tolling. (21) Finally, application of the standard interferes with legislative dictates. Congress meant for plaintiffs to enjoy the full statute of limitations; courts should not decide that a truncated time window was nevertheless a reasonable enough filing period. (22)

2. PROBLEMS WITH THE EMPLOYMENT DISCRIMINATION ANALOGY

   The Seventh Circuit in Cada v. Baxter Healthcare Corp.--an employment discrimination case--expressed two major objections to the frozen clock approach to equitable tolling: it is unfair toward private defendants and rewards slothful plaintiffs. (23) Neither of those concerns, however, applies to filing deadlines in the immigration context, which often involves foreign-born respondents and highly legalistic proceedings. In Yuan Gao, the court applied the Cada reasonableness standard for equitable tolling without explaining why immigration cases should be subject to the same rule as employment discrimination cases. (24)

   1. The Fairness to Defendants Argument in Cada

      The Cada court emphasized the importance of being fair to the defendant when determining an equitable tolling standard. (25) In Carla, the defendant was a private healthcare corporation. In the immigration context, however, the opposing party is the federal government, and the fairness consideration is not as strong. Unlike a private party, the government will not suffer lost profits or accumulate back pay. The government can also rely on career attorneys rather than hire outside...