In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-4431

YUAN GAO,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

____________

Petition to Review an Order of the

Board of Immigration Appeals.

No. A75 688 812

____________

ARGUED DECEMBER 11, 2007—DECIDED MARCH 11, 2008

____________

Before POSNER, WOOD, and EVANS, Circuit Judges.

POSNER, Circuit Judge. This proceeding to review the

denial of asylum has a tangled history unnecessary to

recount. The only issue we need resolve is whether the

Board of Immigration Appeals erred in dismissing, as

untimely, the petitioner’s appeal from the immigration

judge’s denial of his motion to reopen the asylum proceeding. He had 90 days to move to reopen, 8 C.F.R.

§ 1003.23(b)(1), but did not file his motion until the 106th

day. He argues that his delay should be excused because

he did not discover that he had a basis for reopening
2 No. 06-4431

until he met with a new lawyer and learned that his

previous lawyer had given him ineffective legal assistance,

and it was not until a month after the 90-day clock started

to run that he knew he had a claim for relief. He argues

that the 90-day clock should have started to run then,

and not earlier when the order of the immigration judge

that he sought to reopen was entered.

The government concedes that the 90-day deadline is

not rigid—that it can, as we have held, be extended in

appropriate circumstances by appeal to the doctrine of

equitable tolling. Patel v. Gonzales, 442 F.3d 1011, 1016

(7th Cir. 2006); Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th

Cir. 2005); see, e.g., Ghahremani v. Gonzales, 498 F.3d 993,

999-1000 (9th Cir. 2007); Valeriano v. Gonzales, 474 F.3d 669,

673 (9th Cir. 2007); Mahamat v. Gonzales, 430 F.3d 1281,

1283 (10th Cir. 2005). The doctrine creates a defense to

statutes of limitations and other nonjurisdictional filing

deadlines for cases in which, despite due diligence, the

plaintiff cannot sue within the statutory deadline, usually

because he can’t discover within that time that he has

suffered an injury upon which a suit could be based or,

if he knows that much, yet he does not know and cannot

by due diligence discover who his injurer was. E.g.,

Farzana K. v. Indiana Dep’t of Education, 473 F.3d 703, 705

(7th Cir. 2007); Cada v. Baxter Healthcare Corp., 920 F.2d 446,

452-53 (7th Cir. 1990); Luntungan v. Attorney General, 449

F.3d 551, 557 (3d Cir. 2006).

Equitable tolling will rarely be available when a claimant

can obtain an extension of time for complying with a

deadline. (Surprisingly, we can find no case that addresses this point.) Obviously in the usual statute of

limitations setting he cannot obtain an extension of

time—he can go to the defendant and ask the defendant to
No. 06-4431 3

waive the statute of limitations, but he cannot force him

to do so or ask the court to force him. That is not the case

with a court-imposed filing deadline subject to extensions

unless the claimant is somehow prevented, by circumstances that would qualify as grounds for equitable

tolling, from filing for one.

Asked at argument why he had failed to ask for an

extension, the petitioner’s lawyer answered haplessly that

he had not done so because he thought he had a good

defense of equitable tolling. That is a bad reason, but we

hesitate to place decision on the ground of his having

failed for no good reason to ask for an extension. For it is

unclear whether the immigration judge could have

given him one; and, if not, his only recourse may indeed have been to plead equitable tolling.

The statute says that “the motion to reopen shall be

filed within 90 days of the date of entry of a final administrative order of removal,” 8 U.S.C. § 1229a(c)(7)(C)(i), and

the implementing regulation that “a motion to reopen

must be filed within 90 days of the date of entry of a

final administrative order of removal, deportation, or

exclusion, or on or before September 30, 1996, whichever

is later.” 8 C.F.R. § 1003.23(b)(1). Another subsection of

this regulation, § 1003.23(b)(1)(iv), provides that the

immigration judge may “set and extend time limits for

replies to motions to reopen,” but there is no provision

authorizing an extension of the deadline for filing the

motion to reopen itself. Still another subsection, this one

captioned “pre-decision motions,” provides that an

“Immigration Judge may set and extend time limits” for

pre-decision motions and replies to such motions.

§ 1003.23(a). But a motion to reopen is of course a postdecision motion. Section 1003.31(c) provides that “the
4 No. 06-4431

Immigration Judge may set and extend time limits for

the filing of applications and related documents and

responses thereto, if any. If an application or document

is not filed within the time set by the Immigration Judge,

the opportunity to file that application or document

shall be deemed waived” (emphasis added). In other

words, the immigration judge may extend the deadlines

that he sets, as in Hussain v. Gonzales, 424 F.3d 622, 626

(7th Cir. 2005), and Singh v. Gonzales, 495 F.3d 553, 559 n. 2

(8th Cir. 2007). We have found no case that suggests that

this provision authorizes the immigration judge to

extend a statutory deadline.

The 90-day deadline cannot be jurisdictional, for then it

could not be tolled. But a litigant cannot be heard to

complain about a judicial officer’s failure to do an unauthorized act, even if the act would not be considered outside

his jurisdiction in the sense that it would have to be

ignored even if no party complained about it.

Rather than wrestle with the question of the immigration judge’s authority to extend the 90-day deadline—a

question the parties have not briefed—we move to an

alternative ground for denying equitable tolling, which is

that the doctrine does not reset the clock. Gaiman v.

McFarlane, 360 F.3d 644, 656 (7th Cir. 2004); Hentosh v.

Herman M. Finch University of Health Sciences, 167 F.3d

1170, 1175 (7th Cir. 1999); Cada v. Baxter Healthcare Corp.,

supra, 920 F.2d at 452-53; Amini v. Oberlin College, 259 F.3d

493, 501-02 (6th Cir. 2001); Dring v. McDonnell Douglas

Corporation, 58 F.3d 1323, 1331 (8th Cir. 1995); contra,

Cabello v. Fernandez-Larios, 402 F.3d 1148, 1155-56 (11th

Cir. 2005); Socop-Gonzales v. INS, 272 F.3d 1176, 1195 (9th

Cir. 2001) (en banc). So if there is a 10-year statute of

limitations for a suit on a written contract, and the plain-
No. 06-4431 5

tiff has grounds for equitable tolling of that limitation,

this doesn’t mean he gets another 10 years to sue. Indeed,

we have held that a litigant who learns, or had he been

diligent would have learned, all the facts that he

would need in order to be able to file his claim, while

time remains in the limitations period, must file it before

the period ends. Cada v. Baxter Healthcare Corp., supra, 920

F.2d at 453; Brademas v. Indiana Housing Finance Authority,

354 F.3d 681, 687 (7th Cir. 2004). The defendant should not

be left on tenterhooks for 20 years if the plaintiff could

readily have sued in the eleventh year or even earlier.

The Board of Immigration Appeals has not adopted its

own position on the question of resetting the clock—a

question on which there is a disagreement among the

circuits, as our citations showed, though our position that

the doctrine does not reset the clock is the majority position. (The petitioner assumes rather than argues resetting;

the Justice Department ignores the issue in its brief.)

Rather, the Board has followed whatever approach to

equitable tolling is taken by the court of appeals in

which a petition to review its order will be filed. E.g., In

re Guitierrez, 2007 WL 4699960 (BIA Dec. 12, 2007); In re

Reyes-Diaz, 2007 WL 4699882 (BIA Nov. 8, 2007); In re

Gordon, 2007 WL 3301744 (BIA Sept. 26, 2007); In re Khan,

2007 WL 2074553 (BIA June 15, 2007). And in this circuit, equitable tolling does not reset the clock.

The petition was filed on the 106th day, which was the

75th or 76th day after the petitioner discovered that he

had a ground for filing a petition to reopen. The preparation of such a petition does not require an elaborate

investigation. All that is required is that the petitioner

submit an affidavit explaining (1)(a) what his former

counsel was hired to do and (b) how he failed,
6 No. 06-4431

(2) affirming that the petitioner has notified the former

counsel of his allegations of ineffective assistance and

given counsel an opportunity to respond, (3) attaching

the lawyer’s response, if any, and (4) indicating whether

the petitioner has filed his complaint about his former

counsel with the appropriate disciplinary authorities. In re

Lozada, 19 I. & N. Dec. 637 (BIA 1988); see also Patel v.

Gonzales, 496 F.3d 829, 830 (7th Cir. 2007); Benslimane v.

Gonzales, 430 F.3d 828, 831 (7th Cir. 2005); Yang v. Gonzales,

478 F.3d 133, 142 (2d Cir. 2007). Obtaining the necessary

information should not take two and a half months—at

least not normally; and the petitioner has failed to point

to any circumstances that made this the abnormal case

in which a diligent attempt to comply with the 90-day

deadline would have failed, in which event an appeal

to equitable tolling would lie.

An oddity about the case remains to be noted. The

Board of Immigration Appeals affirmed the denial of the

petition to reopen on several grounds besides its untimeliness. In his brief in this court, and at argument, the petitioner’s lawyer argued vigorously that the petition was

saved by equitable tolling. The government ignored the

point in its brief. We cannot, however, treat that as a

waiver or forfeiture. An appellee (or, the equivalent, the

respondent in an appeal from an administrative agency)

is not required to file a brief. Fed. R. App. P. 31(c); Pasha

v. Gonzales, 433 F.3d 530, 535 (7th Cir. 2005); Allgeier v.

United States, 909 F.2d 869, 871 n. 3 (6th Cir. 1990). If

he doesn’t, he weakens his chances for an affirmance,

of course, Pasha v. Gonzales, supra, 433 F.3d at 535; In re

Talbert, 344 F.3d 555, 557 (6th Cir. 2003); Casco Indemnity

Co. v. Rhode Island Interlocal Risk Management Trust, 113

F.3d 2, 3-4 (1st Cir. 1997), but that is all. So while the
No. 06-4431 7

government’s litigating strategy in this case is puzzling,

it does not foreclose our denying the petition for review

on the ground that the government chose not to mention.

DENIED.

USCA-02-C-0072—3-11-08