* District Judge of the Western District of Louisiana, sitting

by designation.

** Pursuant to 5 TH C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 30, 2006

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 04-60123

FARIDEH TORABI; MAZIAR GOSHTASEBI,

Petitioners,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review from the

Board of Immigration Appeals

(A79 466 425)

Before JOLL Y and BARKSDALE, Circuit Judges, and LITTLE, District

Judge. *

PER CURIAM: **

Presently at issue is whether the Board of Immigration Appeals

(BIA) abused its discretion in denying Farideh Torabi’s motion to

reopen, based on her statutory eligibility to adjust to permanent

resident status. An alternative issue, not reached today, is

Torabi’s challenge to the BIA’s decision that she failed to

establish eligibility for asylum, withholding of removal, or relief2

under the Convention Against Torture (CAT). Concerning the motion

to reopen, we remand for consideration of adjustment to permanent

resident status. Pending that decision, we retain jurisdiction to

consider whether Torabi is entitled to rel ief under the other

claimed bases. REMANDED FOR LIMITED PURPOSE

.

I.

Torabi, a 49-year-old, is a native and citizen of Iran, as is

her son, Maziar Goshtasebi, a 19-year-old. Both entered the United

States in May 2000 on temporary visas. (Because Goshtasebi was a

minor during the proceedings before the immigration judge (IJ), his

claims are derivative of Torabi’s.)

In April 2001, Torabi submitted an application for political

asylum with the Immigration and Naturalization Service (INS); but,

after being interviewe d by the INS, she was found ineligible.

After receiving notices to appear for removal proceedings, Torabi

appeared before the IJ. At that hearing, Torabi, her son, and Drs.

Dehghani and Sadri testified regarding Torabi’s a pplications for

asylum, withholding of removal, and relief under the CAT. The

testimony was in Farsi and translated by an interpreter.

In part, Torabi offered the following evidence. She is a

Sunni Muslim, a nurse, and married to a physician. Her involvement

in Iran in a women’s freedom movement group led to her arrest and

being taken into custody in 1990; as a result of police beatings,

she suffered, inter alia

, a miscarriage and a broken nose and3

teeth. After being re-arrested in 1991 for her association with a

Sunni leader, she was whipped and sexuall y abused. In 1994, the

government forbade her from practicing nursing in both government

and private hospitals because of her lack of respect for Islam.

H er husband was repeatedly arrested and subjected to severe

beatings. The government threatened to take her son away from her

if she continued protesting his compulsory attendance at a Shiite

theology class taught at his school.

In denying relief, the IJ stated: “During these proceedings,

... the Court carefully listened to [Ms. Torabi’s] testimony and

observed her demeanor. Ms. Torabi’s demeanor in and of itself did

not connote a lack of truthfulness. However, Ms. Torabi tended to

embellish parts of her story”. The IJ then cited inconsistencies

in her testimony.

The BIA dismissed Torabi’s appeal in January 2004; voluntary

departure was reinstated. Citing a lack of corroborating evidence

and possible exaggerations in Torabi’s testimony, the BIA concluded

that she failed to establish a well-founded fear of persecution.

It also ruled that Torabi’s fear of punishment for refusal to send

her son to a “universally required” religious school did “not arise

from being singled out on account of a protected ground”.

Torabi petitioned this court for review . Subsequently, she

received an approval notice for her I-140 application, making her

immediately eligible to adjust to permanent resident status under4

the Immigration and Nationality Act (INA) § 245(I), 8 U.S.C. §

1255. Torabi informed this court of such eligibility; therefore,

on 25 May 2004, our court stayed the proceedings here, pending a

decision on Torabi’s motion to reopen in the BIA. The BIA denied

that motion as untimely.

Thereafter, Torabi filed a status report with this court on 23

June 2004, within 30 days of the BIA’s order, seeking review of the

motion’s denial. Additionally, she filed an emergency motion to

remand to the IJ based on her eligibility to adjust status, which

was carried with the case by a panel of our court.

II.

Concerning the denied motion to reopen, we first address our

jurisdiction vel non to consider Torabi’s seeking review o f that

denial. In doing so, we examine: whether she filed the requisite

petition for review; and whether we can review the untimeliness

basis for the m otion’s denial. Because we hold jurisdiction

exists, we next consider whether the BIA abused its discretion in

denying the motion; we hold that it did.

A.

As noted, in holding that we have jurisdiction, we examine two

possible bases for precluding it.

1.5

Respondent claims we lack jurisdiction to review the motion’s

denial because Torabi did not file a peti tion for review of that

decision. Pursuant to 8 U.S.C. § 1252(b)(1), a “petition for

review must be filed not later than 30 days after the date of the

final order of removal”. See Giova v. Rosenberg , 379 U.S. 18

(1964) (holding that the denial of a motion to reopen is construed

as a final order of removal for purposes of an appellate court’s

jurisdiction). Torabi’s status report, filed here on 23 June 2004,

within 30 days of the denial of her motion, sought review of that

denial. That report is both a constructive and timely petition for

review. S ee Tapia-Acuna v. INS , 640 F.2d 223, 224 n.3 (9th Cir.

1981) (holding, under former statute, that a notice filed by the

INS notifying the court that the BIA had issued its decision

manifested clear intention of the parties to seek review of the

second BIA decision and, thus, construing the notice as a second

petition for review), superseded on other g rounds by statute as

recognized in United States v. Estrada-Torres

, 179 F.3d 776, 778

(9th Cir. 1999), cert. denied , 531 U.S. 864 (2000).

2.

Respondent does not offer any additional challenge to our

jurisdiction to review the denial of Torabi’s motion. Of course,

we have a duty, sua sponte

, to determine jurisdiction vel non

.

Mosley v. Cozby , 813 F.2d 659, 660 (5th Cir. 1987). As discussed6

infra

, we have jurisdiction to review whether the BIA abused its

discretion in denying the motion as untimely.

Under 8 U.S.C. § 1252(a)(2)(B)(i), this court is stripped of

jurisdiction to review BIA final orders regarding granting of

relief vel non under 8 U.S.C. § 1255 (allowing f or adjustment of

status of a nonimmigrant to that of a person admitted for permanent

residence). As noted, in denying Torabi’s motion, however, the BIA

never reached the merits of her adjustment-of-status request under

§ 1255; the denial was based solely on the motion’s untimeliness

under 8 C.F.R. § 1003.2(c)(2). Thus, we have jurisdiction to

review the denial of Torabi’s motion to reopen. S ee Medina-Morales

v. Ashcroft

, 371 F.3d 520, 525-27 (9th Cir. 2004) (concluding 8

U.S.C. § 1252(a)(2)(B)(i) did not strip jurisdiction to review the

BIA’s denial of a motion to reopen because the IJ never ruled o n

the merits of the petitioner’s adjustment-of-status petition under

§ 1255); see also Panjwani v. Gonzales

, 401 F.3d 626, 632 (5th Cir.

2005) (holding that the court had “jurisdiction over the BIA’s

denial of an untimely motion to reopen deportation proceedings in

instances where th e petitioner file[d] such a motion seeking to

avail himsel f of the [statutory] exception for ‘changed

circumstances’”); Prekaj v. INS

, 384 F.3d 26 5, 267-68 (6th Cir.

2004) (explaining that the co urt had jurisdiction to review the

BIA’s decision not to reopen the pet itioner’s case); Lara v.

Trominski

, 216 F.3d 487, 496 (5th Cir. 2000) (ruling that7

jurisdiction existed to consider whether the BIA erred in denying

the petitioner’s motion to reconsider its denial of his motion to

reopen).

B.

The BIA’s denial of Torabi’s motion is reviewed for abuse of

discretion. L ara

, 216 F.3d at 496 (“[T]he abuse of discretion

standard applies to motions to reopen regardless of the underlying

basis of the alien’s request for relief”.) (quoting INS v. Doherty

,

502 U.S. 314, 323 (1992)) (internal quotation marks omitted). We

hold the BIA abused its discretion by its untimeliness basis for

denial.

1.

Pursuant to regulation, not statute , a motion to reopen must

be filed within 90 days of the date of entry of the final

administrative order of removal. 8 C.F.R. § 1003.2(c)(2). The

BIA’s underlying decision was issued on 29 January 2004; thus, for

timeliness purposes, Torabi was required to file her motion to

reopen by 28 April. Torabi, however, did n ot receive notice of her

eligibility to adjust status to lawful permanent resident until 3

May 2004

— a few days outside the 90-day period for timely filing.

Torabi’s motion to reopen was promptly filed on 12 May.

On 9 June 2004, the BIA denied the motion, explaining that,

because it was outside the 90-day limit, it was “filed out of time

and will be denied”. Torabi asserts, however, that the motion8

should have been considered on the merits because it was based on

material evidence

— her eligibility to adjust to permanent resident

status

— that was not previously av ailable. Torabi relies on 8

C.F.R. § 3.2(c)(1) (2003), current 8 C.F.R. § 1003.2(c)(1) (2005),

which states: “A motion to reopen ... shall not be granted unless

... [the new] evidence sought to be offered is material and was not

available and could not have been discovered or presented at the

former hearing”.

Respondent replies that 8 U.S.C. § 1252(a) prohibits our

remanding the motion for consideration of new evidence under 28

U.S. C. § 2347(c) (allowing courts of appeal to order additional

evidence, to be taken by the agency appealed from, where that

evidence is material and there were reasonable grounds for its not

being present ed before the agency). Other circuits have indeed

interpreted earlier versions of § 1252(a) as prohibiting appellate

courts “from ordering the BIA to consider evidence that is offered

for the first time on appeal , even if such material satisfies the

rigors of § 2347(c)”. N ajjar v. Ashcroft

, 257 F.3 d 1262, 1281

(11th Cir. 2001) (emphasis added); see Reyes-Melendez v. INS , 342

F.3d 1001, 1006 (9th Cir. 2003) (holding that appellate courts are

precluded “from remanding cases to the BIA for the taking of

additional evidence under ... § 2347(c)”).

Here, however, the evidence offered in support of the motion

to reopen was not presented for the first time on appeal; rather,9

it was presented with Torabi’s motion to reopen. Thus, § 1252(a)

does not preclude our remanding to the BIA for consideration of

Torabi’s eligibility to adjust to permanent resident status.

2.

Torabi’s motion was not denied because of the BIA’s failure to

consider this evidence, but rather was denied based on its

u ntimeliness; therefore, we address why the BIA abused it s

discretion in this respect. As urged in Torabi’s status report,

the harsh results of this case, in ou r discretion, require

applica tion of the doctrine of equitable tolling. Under this

doctrine, the BIA should have considered Torabi’s motion on the

merits.

Because the 90-day li mitations period under 8 C.F.R. §

1003.2( c )(2) is not jurisdictional, the doctrine of equitable

tolling may be applied. S ee Borges v. Gonzales

, 402 F.3d 398, 406

(3d Cir. 20 05) (following the Ninth Circuit’s determination to

apply equitable tolling to motions to reopen, and addit ionally

noting that “[t]he First, Second, Fourth, and Sixth Circuits have

more generally cons idered applying, or have applied, equitable

tolling to motions to reopen”); Iavorski v. INS

, 232 F.3d 124, 132

(2d Cir. 2000) (concluding that the 90-day period to file a motion

to reopen is not jurisdictional and thus is subject to equitable

tolling); s ee also Davis v. Johnson

, 158 F.3d 806, 811 (5t h Cir.

1998) (explaining that, be cause the Antiterrorism and Effective10

Death Penalty Act’s time limitation period is not jurisdictional,

the doctrine of equitable tolling could be applied in “rare and

exceptional circumstances”), cert. denied , 526 U.S. 1074 (1999).

Because the doctrine of equitable tolling “is read int o every

federal statute of limitation”, Holmberg v. Armbrecht

, 327 U.S.

392, 397 (1946), it is appropriate to apply the doctrin e in the

present case, wher e the 90-day period is n ot jurisdictional, but

rather is a limitations period pursuant to a regulation. S ee Lopez

v. INS , 184 F.3d 1097, 1100 (9th Cir. 1999).

On these facts, Torabi’s not discovering she was eligible for

permanent resident status until a few days after the 90-day

deadline led to an inequitable result; thus, we hold that the

doctrine of equitable tolling applies. S ee Davis

, 158 F.3d at 810

(“The doctrine of equitable tolling preserves a plaintiff’s claims

when strict application of the statute of limitations would be

inequitable.”) (internal citation and quotation marks omitted).

“We will apply equitable tolling in situations where, despite all

due diligence, [the party invoking equitable tolling] is unable to

obtain vital information bearing on t he existence of the claim.”

Socop-Gonzalez v. INS

, 272 F.3d 1176, 1193 (9th Cir. 2001) (en

banc) (internal quotation marks omitted) (alteration in original)

(noting that, although the court had applied equitable tolling in

the past to instances of frau d and ineffective assistance of

cou nsel, “the doctrine is by no means limited to these11

situations”). Torabi was unable to obtain information vital to her

adju stment-of-status claim because she was n ot informed of her

immediate eligibility to adjust to permanent resident status until

3 May 2004, approximately five days after her deadline to move to

reop en. She filed her motion to reopen with the BIA on 12 May,

just days after receiving notice of her eligibility for adjustment

of status.

Accordingly, we hold the BIA abused its discretion in refusing

to toll Torabi’s filing deadline so that she could present evidence

of her newly granted eligibility for adjustment of status. Because

Torabi’s motion was denied as being untimely, the merits of her

adjustment-of-status claim have not been addressed. Obviously, if

Torabi is entitled to such adjustment, we need not reach the other

bases on which she seeks relief. The merits of her motion should

be addressed first by the BIA. Accordingly, this matter is

remanded to the BIA for the limited purpose of deciding the motion

to reopen on its merits. S ee Asani v. INS

, 154 F.3d 719, 725 (7th

Cir. 1998).

III.

For the foregoing reasons, we REMAND to the BIA for the

limited purpose of its considering the merits of Torabi’s motion to

reopen to a djust status. We retain jurisdiction; and, following

such consideration, if the BIA declines to adjust Torabi’s status,12

this pane l will decide whether Torabi should be granted asylum,

withholding of departure, or relief under the CAT.

REMANDED FOR LIMITED PURPOSE