FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE ALBERTO VALERIANO, 

Petitioner,

No. 03-72277

v.  Agency No.

ALBERTO R. GONZALES, Attorney A74-814-995

General,

Respondent. 

JOSE ALBERTO VALERIANO, 

Petitioner, No. 03-74754

v. Agency No.  A74-814-995 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 20, 2005—Pasadena, California

Filed January 23, 2007

Before: Andrew J. Kleinfeld and Raymond C. Fisher,

Circuit Judges, and Milton I. Shadur,* Senior District Judge.

Opinion by Judge Kleinfeld

*The Honorable Milton I. Shadur, Senior United States District Judge

for the Northern District of Illinois, sitting by designation. 

899
COUNSEL

Victor D. Nieblas, Law Office of Victor D. Nieblas Pradis,

Los Angeles, California, for the petitioner. 

VALERIANO v. GONZALES 901
Cindy S. Ferrier (argued), Shelley R. Goad (briefed), Office

of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the respondent. 

OPINION

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

902 VALERIANO v. GONZALES
have been Valeriano’s notice of appeal, because he did not

sign the notice of appeal until December 13, two days after

that FedEx package was sent. Also, Valeriano’s notice of

appeal came to the BIA in a postmarked envelope, not a

FedEx package, and the envelope is in the record. The postmarks on the envelope showed that it had been mailed, and

could not have arrived in Washington by December 16 when

it was due.1 The BIA, taking note of these discrepancies,

denied the motion to reconsider. 

The date of the denial of Valeriano’s motion for reconsideration was May 22, 2000. Unfortunately the denial of the

motion to reconsider did not get to Valeriano. He had filled

out a BIA change of address form, but his lawyer had not

mailed it to the BIA, so the decision the BIA mailed to Valeriano (his lawyer had prepared his papers as pro se filings)

came back to the BIA a few weeks later marked “return to

sender” by the post office. Valeriano did not know his case

was over until he sought to renew his work permit. He then

complained to his lawyer, who “reimbursed [him] $600 of the

money that [he] had paid her for the appeal.” 

Valeriano retained new counsel in August 2001 after discovering that he could not get his work permit renewed. His

new lawyer promptly followed the Lozada2 procedure to give

Valeriano’s previous lawyer a chance to explain what had

happened and to notify the state bar of the alleged misconduct. Previous counsel responded to new counsel’s inquiry in

September. New counsel promptly filed a complaint with the

state bar. 

1Administrative Record at 155. There are two postmarks on the envelope. One says December 17, Los Angeles. The other says December 13

or 18 (the postal meter is not entirely legible), Los Angeles. 

2Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) (“[B]efore allegations of ineffective assistance of former counsel are presented to the

Board, former counsel must be informed of the allegations and allowed the

opportunity to respond.”). 

VALERIANO v. GONZALES 903
In November of 2001, Valeriano’s new lawyer wrote to the

Office of District Counsel at the INS, requesting that District

Counsel join in a motion to reopen pursuant to Lozada, and

arguing that Valeriano had a good case for suspension of

deportation. Valeriano’s lawyer mailed the letter with the

joint motion to reopen that he proposed to file if the District

Counsel agreed to join attached. It is the same motion he

eventually did file, except that the word “joint” has been

crossed out and District Counsel has not signed it. He

enclosed the evidence he proposed to submit so that district

counsel could evaluate it. 

Thus, the motion to reopen was ready to file in November

of 2001. But counsel did not file it, hoping that the District

Counsel would agree to it and greatly increase the likelihood

of success. The District Counsel did not agree, but that is not

the immediate problem. The problem that controls this case is

that counsel for petitioner did not file his motion for eight

months.3 He was waiting for a response to his letter and telephone calls, and did not get one until the following April, five

months later. That is when District Counsel turned down his

request to join in the motion to reopen. 

Immediately after receiving District Counsel’s letter declining to join, in April 2002, counsel filed the motion to reopen

with the BIA pursuant to Lozada.

4

 The motion was the same

one he had sent to District Counsel the previous November,

with the word “joint” crossed out before “motion.” The BIA

denied it. The BIA reasoned that although the ninety day

deadline for motions to reopen could be equitably tolled until

the client learned of his previous attorney’s fraud, equitable

tolling required due diligence, which was absent. Because

Valeriano’s lawyer did not file the motion for eight months

3Part of the eight months was necessarily consumed by the Lozada procedure. Valeriano argues, and we assume without deciding, that the ninety

day period under 8 C.F.R. § 1003.2(c)(2) runs from retaining new counsel.

4Lozada, 19 I. & N. Dec. at 638-40. 

904 VALERIANO v. GONZALES
after Valeriano learned of his previous lawyer’s alleged fraud,

equitable tolling was denied. 

Valeriano’s lawyer filed a motion to reconsider, arguing

that the reason for the five month delay was that he was waiting for District Counsel to act. In addition to the letter in

November, he made “many calls,” and filed the motion as

soon as District Counsel advised him that it declined to join.

He also filed additional evidence to show hardship to Valeriano’s U.S. citizen son if Valeriano was deported. The BIA

denied the motion to reconsider because it presented no error

of fact or law. 

Valeriano, represented on appeal by a new lawyer, petitions

for review of both the denial of the motion to reopen and the

denial of the motion to reconsider. 

Analysis

Motions to reopen are “discretionary” and “disfavored.”

5

We review the BIA’s denial of motions to reopen and reconsider for abuse of discretion.6

 We reverse the denial of a

motion to reopen only if it is “arbitrary, irrational, or contrary

to law.”

7

 Jurisdiction arises under former INA § 106(a)(1), 8

U.S.C. § 1105a(a)(1), as amended by IIRIRA § 309. Although

INA § 106 has been repealed by IIRIRA and replaced with a

new judicial review provision, that repeal was not effective

until April 1, 1997.8

[1] The regulation limits petitioners to one motion for

rehearing, but this numerical limit is excused “where a peti5

INS v. Doherty, 502 U.S. 314, 323 (1992); Castillo-Villagra v. INS,

972 F.2d 1017, 1023 (9th Cir. 1992). 

6Doherty, 502 U.S. at 323; Cano-Merida v. INS, 311 F.3d 960, 964 (9th

Cir. 2002). 

7

Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002). 

8

See IIRIRA §§ 306(c)(1), 309(a) and (c). 

VALERIANO v. GONZALES 905
tioner has been defrauded by an individual purporting to provide legal representation.”

9

 The BIA assumed for purposes of

decision (without so finding) that Valeriano was “defrauded”

by the lawyer who filed his appeal late. They treated the case

as though he had discovered his previous lawyer’s “fraud” on

the latest date the record could support, in August 2001, when

he signed a declaration describing what his previous lawyer

had done wrong and retained new counsel. Thus, the BIA did

not count against him either the numerical limitation, to a single motion to reopen, or the time limitation, to ninety days

from when the BIA rejected his appeal. The BIA decided

against him because of the eight months between when he

retained new counsel and signed his declaration setting out

the ineffective assistance, and when he filed his motion to

reopen. 

Thus, the question in this case is whether equitable tolling

is available for that eight months, from August 2001 to April

2002. A month or so of that time was necessarily consumed

by Lozada compliance. Even if we assume (we need not

decide) that Valeriano had ninety days to file the motion once

he retained new counsel and knew of previous counsel’s

“fraud,”10 then he needs five months of equitable tolling. 

[2] We have held that the ninety day deadline for motions

to reopen is subject to equitable tolling.11 No affirmative misconduct is required for equitable tolling (as opposed to equitable estoppel) to apply.12 In our en banc decision in SocopGonzalez, we held that when the lady at the INS “information

booth” gave the petitioner the wrong advice twice, and he followed it to his detriment, there was no equitable estoppel

because “affirmative misconduct” requires a deliberate lie or

9Rodriguez-Lariz v. INS, 282 F.3d 1218, 1224 (9th Cir. 2002); see also

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

10Rodriguez-Lariz, 282 F.3d at 1224. 

11Socop-Gonzalez v. INS, 272 F.3d 1176, 1181 (9th Cir. 2001)(en banc).

12Id. at 1184-85. 

906 VALERIANO v. GONZALES
a pattern of false promises, not merely negligently providing

misinformation.13 For equitable tolling to apply, it is necessary

that “despite all due diligence, the party invoking equitable

tolling is unable to obtain vital information bearing on the

existence of the claim.”

14 The party’s ignorance of the necessary information must have been “caused by circumstances

beyond the party’s control.”

15 It is not necessary that wrongful

conduct by a third party caused the inability to discover the

information, but merely that the information was unavailable

for reasons beyond the party’s control.16

[3] Valeriano claims that the unobtainable, vital “information” was whether the District Counsel would agree to his

motion to reopen. The District Counsel did not mislead him,

like the person at the INS “information booth” in SocopGonzalez. It just did not respond to his request. He has not

found a case where, on any similar facts, equitable tolling has

been applied, nor has the INS found a case where on similar

facts it was denied. 

[4] The problem with Valeriano’s argument is that he did

not need this information to file his motion to reopen. Equitable tolling is available only where an alien is diligent. We recognize that Valeriano’s counsel appears to have diligently

pursued the District Counsel’s agreement to join the motion

to reopen, and we assume for purposes of decision that with

agreement, success on the motion to reopen was highly probable, without it, highly improbable. However, diligence in

attempting to obtain nonvital information or acquiescence is

not “diligence” within the meaning of our equitable tolling

jurisprudence. A contrary rule would expand “information” to

embrace responses to proposed stipulations of opposing counsel, an unsound position. It would also require the District

13Id. 

14Id. at 1193 (internal citations omitted). 

15Id.; see also Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001). 

16Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001)(en banc).

VALERIANO v. GONZALES 907
Counsel to answer its mail and call people back. That is desirable. But were we to make a rule that times do not run while

the District Counsel is not responding, the immigration and

deportation process would be even more clogged than it is, or

the District Counsel would simply instruct its secretaries to

generate “just say no” form letters and telephone responses

immediately. Had the District Counsel told Valeriano’s lawyer “don’t do anything yet, we may agree, hold off,” then the

case would be more like Socop-Gonzalez, and equitable tolling might be justified. But the INS did not do that, or anything else to justify Valeriano’s delay in filing his motion. 

[5] Valeriano’s counsel could have timely filed his motion

with the BIA while his joinder request to the District Counsel

was still pending — and even told the BIA that the District

Counsel had not responded. Perhaps the District Counsel

would have eventually filed notice of its agreement (or perhaps not). If the BIA had not yet ruled on the original, solo

motion to reopen, Valeriano could have sought leave to

amend the motion when and if the District Counsel agreed to

join.17 Even if the BIA had denied Valeriano’s motion before

the District Counsel had responded to Valeriano’s counsel’s

request to join the motion, the District Counsel’s eventual

agreement — had it come — would have revived Valeriano’s

ability to file a motion to reopen. Section 1003.2(c)(3)(iii)

clearly states that a jointly filed motion is exempt from the

time and numerical limitations on the BIA’s jurisdiction to

entertain such a motion. Thus, Valeriano’s counsel’s decision

17Petitioner argues that § 1003.2(c)(3)(iii) requires a motion be filed

jointly in the first instance in order to qualify for that section’s exemptions, but nothing in the regulations appears to preclude amending a

motion to reflect a newly obtained agreement to join an existing motion

to reopen. Moreover, even were petitioner’s interpretation of

§ 1003.2(c)(3)(iii) correct, he simply could have filed a new motion once

he had obtained the District Counsel’s agreement, as explained in text. 

908 VALERIANO v. GONZALES
to delay filing a motion to reopen until he received the District Counsel’s long-awaited response was tactical.18

The District Counsel’s long response time does, of course,

have the potential to threaten the meaningful exercise of the

joint filing option extended in § 1003.2(c)(3)(iii), particularly

if the BIA should deny the motion before the District Counsel

has decided whether or not to file jointly. Lawyers and agencies can impose real hardship by refusing to respond to telephone calls and letters. Such refusal can be an unfair tactic.

At oral argument, petitioner’s counsel contended that if the

BIA denied a solo motion before the District Counsel

responded to the motion to join, and there is a “third or fourth

motion to reopen,” then “it becomes extremely difficult . . .

to get a joint stipulation from the government.” Although we

are troubled by this possibility, we are unable to speculate on

this record that the District Counsel would in fact ignore or

summarily deny requests to file jointly in compelling cases,

even after the BIA has denied the solo motion. Moreover, the

BIA is not powerless to forestall the development of such

troubling situations. If, when filing a timely motion to reopen,

an alien advises the BIA of a pending request with the District

Counsel to file jointly, the BIA could stay its decision until

the District Counsel responds to the request. 

[6] Because we see no unavoidable conflict between simultaneously filing a motion to reopen under 8 C.F.R.

§ 1003.2(c)(1) and a request to file jointly under 8 C.F.R.

§ 1003.2(c)(3)(iii), we hold that the petitioner’s counsel did

18The petitioner does not argue (and we express no opinion as to

whether) his second counsel’s “failure to file necessary papers in immigration proceedings” due to an erroneous belief that he could wait to file the

motion until he had received the District Counsel’s response “constitute[s]

ineffective assistance of counsel,” Iturribarria v. INS, 321 F.3d 889, 900

(9th Cir. 2003), and therefore a denial of due process under the Fifth

Amendment because “the proceeding was so fundamentally unfair that the

alien was prevented from reasonably presenting his case.” Lopez v. INS,

775 F.2d 1015, 1017 (9th Cir. 1985). 

VALERIANO v. GONZALES 909
not act diligently by delaying filing until he had received the

District Counsel’s response to his request, and thus the petitioner is not entitled to equitable tolling of the filing deadline.

PETITION DENIED.

910 VALERIANO v. GONZALES