Jobe v. Immigration & Naturalization Service

United States Court of Appeals
For the First Circuit

No. 99-1064

SULAY JOBE,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
Selya, Boudin, Stahl, Lynch, and Lipez,
Circuit Judges.

Linda M. Sanchez, with whom Cooper & Sanchez were on brief
for petitioner.
Iris Gomez and Harvey Kaplan, with whom Kaplan, O'Sullivan
and Friedman, was on brief for Massachusetts Law Reform
Institute, Political Asylum Immigration Representation Project,
Greater Boston Legal Services, International Institute of
Boston, Community Legal Services and Counseling Center, Harvard
Immigration and Refugee Clinic, Boston College Immigration and
Asylum Project, National Immigration Project of the National
Lawyers Guild, and American Immigration Lawyers Association,
amici curiae.
Brenda E. Ellison, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, United States Department
of Justice, with whom David W. Ogden, Acting Assistant Attorney
General, Civil Division, and David V. Bernal, Assistant
Director, Office of Immigration Litigation, were on brief, for
respondent.

January 30, 2001

OPINION EN BANC
______________________
 STAHL, Circuit Judge. Petitioner Sulay Jobe failed to

appear at his deportation hearing and was ordered deported in

absentia. More than eight months later, Jobe filed a motion to

reopen asking that his deportation order be rescinded. In

support of the motion, Jobe alleged that ineffective assistance

of counsel had caused him to miss the deportation hearing. An

immigration judge ("IJ") denied the motion as untimely because,

by statute, such motions must be filed within 180 days of the

deportation order. Jobe appealed, contending that the same

attorney incompetence that caused him to miss his hearing also

caused him to miss the deadline for filing his motion to reopen.

The Board of Immigration Appeals ("BIA") dismissed the appeal.

Jobe then sought review of the BIA's decision in this court. On

May 24, 2000, a divided panel vacated the BIA's order and

remanded for a hearing to determine whether the running of the

180-day period for filing a motion to reopen should be equitably

tolled on the facts of this case. Thereafter, respondent

Immigration and Naturalization Service ("INS") petitioned for and

was granted en banc review of the panel's holding. We

simultaneously withdrew the panel opinion. We now dismiss Jobe's

petition for review.

I.

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 In June 1994, Jobe, a native and citizen of Gambia,

entered the United States as a nonimmigrant visitor for business.

He was authorized to remain in the United States until July 18,

1994, but remained beyond that date without authorization from

the INS. On September 9, 1994, Jobe contacted the INS and filed

an application for political asylum. On February 6, 1996, the

INS informed Jobe that his application had been denied and his

case referred to an IJ for a hearing.

On February 14, 1996, the INS served Jobe with an order

to show cause ("OSC"), which charged him with remaining in the

United States longer than permitted, in violation of §

241(a)(1)(B) of the Immigration and Nationality Act ("INA"),

codified at 8 U.S.C. § 1251(a)(1)(B) (1994).1 A hearing on the

1On September 30, 1996, Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, 3009-546
(1996), which redesignated former INA § 241 as § 237,
transferred it to a different section of the United States Code,
and otherwise brought significant changes to the country's
immigration laws. But because petitioner was in deportation
proceedings before April 1, 1997 (IIRIRA's "Title III-A
effective date") and had his final order of deportation entered
more than 30 days thereafter, he is subject only to the IIRIRA's
so-called "transitional rules." See IIRIRA § 309(c)(1),(4) (as
amended) ("transitional rules"). And under the transitional
rules, the IIRIRA's permanent new rules do not apply unless a
case meets one of the enumerated exceptions set forth in IIRIRA
§ 309(c)(4). All agree that none of these exceptions applies to
this case. Thus, we evaluate Jobe's petition under the "old
rules," such as INA § 241(a)(1)(B), even though they have since
been repealed or redesignated.

-4-
OSC was scheduled in Boston on May 22, 1996. The OSC

specifically advised Jobe that, if he failed to appear for his

hearing and his deportability were established, he would be

deported in absentia. The OSC also advised Jobe that, if were

deported in absentia, he could not have the order rescinded

except that he "may file a motion to reopen the hearing within

180 days after the date of the [deportation] order if [the alien

is] able to show that [his] failure to appear was because of

exceptional circumstances . . . ."2 In March or early April of

1996, Jobe moved to New York City to live with his friend,

Sulayman Bah. Jobe does not write or speak English, and thus

used Bah as an intermediary to retain attorney Earl S. David to

represent him.

The crucial facts of this case, which we derive from

Jobe's own submissions during the administrative proceedings, are

as follows. On April 12, 1996, Attorney David wrote to the

2
The OSC also advised Jobe of his entitlement to file a
motion to reopen an in absentia deportation order

at any time if [the alien] can show that [he] did not
receive written notice of [the hearing on the OSC] and
[he] had provided [his] address and telephone number
(and any changes of [his] address and telephone
number) as required . . . and did not appear at [his]
hearing through no fault of [his] own.

In the administrative proceedings, Jobe claimed that he received
inadequate notice of the hearing on his OSC, but he has
abandoned that claim in this court.

-5-
Immigration Court in Boston, requesting a change in venue to New

York because Jobe now lived there. Subsequently, Jobe, again

using Bah as an intermediary, contacted Attorney David to inform

him that he would be unable to attend the May 22 hearing because

of a back injury. According to affidavits submitted by Bah and

Jobe (and disputed by Attorney David), David informed Bah that

the case already had been transferred to New York and that Jobe

would be contacted when the court set a new hearing date. The

case never was transferred. Neither Jobe nor David attended the

May 22 hearing, and Jobe was ordered deported in absentia. In

his brief, Jobe suggests that he only learned that he had been

ordered deported in absentia when he received a December 4, 1996

notice from the INS denying his application to renew his

employment authorization. At that time, the 180-day statutory

window for seeking rescission on the basis of exceptional

circumstances – a statutory window of which Jobe had been advised

in the OSC – had closed, but only by a couple of weeks.

Nonetheless, Jobe failed to take any action until

February 11, 1997, when, acting through new counsel, he moved to

reopen and stay the deportation proceedings. Insofar as is here

relevant, he argued that his failure to appear was the result of

"exceptional circumstances" – i.e., ineffective assistance of

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counsel3 – and that his deportation order thus should be

rescinded. See INA § 242B(c)(3)(A), codified at 8 U.S.C.

§ 1252b(c)(3)(A) (1994)4 (permitting the rescission of an in

absentia deportation order "only . . . upon a motion to reopen

filed within 180 days after the date of the order of deportation

if the alien demonstrates that the failure to appear was because

of exceptional circumstances (as defined in subsection (f)(2) of

this section)").5 On February 12, 1997, an IJ denied the motion

as untimely, noting that it was brought well outside the 180-day

window provided in the statute. On March 10, 1997, Jobe appealed

3Because deportation proceedings are civil, the Sixth
Amendment guarantee of effective counsel in criminal proceedings
is inapplicable. Nonetheless, we have recognized that "there is
a due process violation if [a deportation proceeding] was so
fundamentally unfair that the alien was prevented from
reasonably presenting his case." Bernal-Vallejo v. INS, 195
F.3d 56, 63 (1st Cir. 1999) (collecting cases). It is in this
sense that the phrase "ineffective assistance of counsel" has
made its way into immigration cases, and it is in this sense
that we use the term in this opinion.
4
Although INA § 242B(c)(3)(A), codified at 8 U.S.C.
§ 1252b(c)(3)(A) (1994), has been repealed, Congress replaced
the provision with one that is in all respects identical except
that what formerly was called "deportation" is now referred to
as "removal." See INA § 240(b)(5)(C)(i), codified at 8 U.S.C.
§ 1229a (b)(5)(C)(i).
5
Former INA § 242B(f)(2), codified at 8 U.S.C. §
1252b(f)(2), provided: "The term 'exceptional circumstances'
refers to exceptional circumstances (such as serious illness of
the alien or death of an immediate relative of the alien, but
not including less compelling circumstances) beyond the control
of the alien."

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the IJ's decision to the BIA. He argued that the IJ erred in

denying his motion to reopen because his failure to file the

motion within the 180-day statutory period was caused by the same

ineffective assistance of counsel that caused him to miss his

deportation hearing in the first instance. On December 15, 1998,

the BIA dismissed Jobe's appeal because Jobe was "statutorily

barred [by the 180-day statutory window] from rescinding the

deportation order on the basis of exceptional circumstances."

Jobe then petitioned us to review the BIA's order. In

his brief, Jobe argued that the BIA violated his due process

rights by applying the 180-day statutory period in circumstances

where the same ineffective assistance of counsel that caused him

to miss his hearing also caused him to miss the deadline for

filing his motion to reopen. A divided panel of this court

granted the petition. The majority construed Jobe's brief as

setting forth an argument that the 180-day time period prescribed

in INA § 242B(c)(3)(A) is subject to equitable tolling, and,

after noting that the issue has split the circuits,6 agreed with

6
Compare Anin v. Reno, 188 F.3d 1273, 1278 (11th Cir. 1999)
(holding that INA § 242B(c)(3)(A) sets forth a "mandatory and
jurisdictional" time bar) with Lopez v. INS, 184 F.3d 1097, 1100
(9th Cir. 1999) (holding that INA § 242B(c)(3)(A)'s time bar is
not jurisdictional and thus subject to equitable tolling); cf.
Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) (holding that the
equitable tolling doctrine applies to the 90-day period provided
in 8 C.F.R. § 3.23(b)(1)(2000) for filing motions to reopen
based on "new facts").

-8-
Jobe's argument on the merits. The majority also determined that

Jobe's submissions were sufficient to warrant further inquiry, at

the agency level, into whether the statute should be equitably

tolled in the circumstances of this case. The dissent argued,

inter alia, that the majority should not have decided whether the

statute is subject to equitable tolling because, even if it were,

Jobe had failed to establish possible entitlement to equitable

relief. Thereafter, the INS sought and was granted rehearing en

banc, and the panel opinion was withdrawn.

II.

In its petition for rehearing en banc, the INS makes a

powerful argument that INA § 242B(c)(3)(A) should be regarded as

mandatory and jurisdictional and thus not subject to equitable

tolling – an argument that is skillfully countered not only by

our dissenting brothers, but also by the Massachusetts Law Reform

Institute, which filed a well argued amicus brief on behalf of

itself and the following interested parties: the Political Asylum

Immigration Representation Project; Greater Boston Legal

Services; the International Institute of Boston; the Community

Legal Services and Counseling Center; the Harvard Immigration and

Refugee Clinic; the Boston College Immigration and Asylum

Project; the National Immigration Project of the National Lawyers

Guild; and the American Immigration Lawyers Association. We

-9-
appreciate the importance of the issue and the effort that has

been expended in framing it for us in a most helpful way. But

because Jobe has not made a prima facie showing of entitlement to

equitable tolling or otherwise convinced us that application of

INA § 242B(c)(3)(A)'s time limit violates his due process rights

on the facts of this case, we dismiss the petition without

deciding whether the equitable tolling doctrine may apply to this

statutory provision.

Even when it applies, equitable tolling is a

"sparingly" invoked doctrine. Irwin v. Dep't of Veterans

Affairs, 498 U.S. 89, 96 (1990). We have identified five factors

that should guide courts in evaluating a claimant's entitlement

to such tolling: (1) a lack of actual notice of a time limit; (2)

a lack of constructive notice of a time limit; (3) diligence in

the pursuit of one's rights; (4) an absence of prejudice to a

party opponent; and (5) the claimant's reasonableness in

remaining ignorant of the time limit. See Benitez-Pons v.

Commonwealth of Puerto Rico, 136 F.3d 54, 61 (1st Cir. 1998)

(deciding whether to toll the running of a statute of

limitations) (citing Kale v. Combined Ins. Co., 861 F.2d 746, 752

(1st Cir. 1988)). The fundamental principle is that equitable

tolling "is appropriate only when the circumstances that cause a

[party] to miss a filing deadline are out of his hands." Salois

-10-
v. Dime Savings Bank, 128 F.3d 20, 25 (1st Cir. 1997) (citation

and internal quotation marks omitted). For this reason,

"[e]quitable tolling is unavailable where a party fails to

exercise due diligence." Benitez-Pons, 136 F.3d at 61.

In this case, the evidence submitted by Jobe in support

of his equitable tolling argument7 undermines his claim to have

been sufficiently diligent to warrant an equitable tolling of the

statute. In paragraph 4 of his August 4, 1997 affidavit, Bah

largely corroborates the allegation which is at the heart of

Jobe's claim that attorney dereliction caused him to miss the May

22, 1996 deportation hearing:

Attorney David promised to transfer the case
to New York. Attorney David told me that he
had written for the case to be transferred
from Boston to New York. I believed him and
told [petitioner] to disregard the hearing
date scheduled for Boston. I told
[petitioner] that Immigration will inform him
of his new Court date in New York.

But then, in paragraph 5 of the same affidavit, Bah states: "The

next letter addressed to Sulay Jobe was a ruling from the

Immigration Court that was done in Sulay’s absence. I advised

Sulay of this letter and told him to see an Attorney

immediately." (Emphasis added.). Moreover, in his September 11,

7
For purposes of this analysis, we shall assume arguendo
that Jobe has presented a preserved and sufficiently developed
argument in favor of equitably tolling the running of the 180-
day time period in INA § 242B(c)(3)(A).

-11-
1997 sworn "correction" to his August 4 affidavit, Bah makes

clear two crucial facts: (1) the notice of the IJ’s in absentia

deportation order was in Bah's hands within a month of the IJ's

-12-
ruling;8 and (2) Bah " immediately" told Jobe about the arrival of

8In his sworn correction, Bah states: "When the notice of
decision came to the New York address, on or about May - June,
1997, I received the notice of decision from the Court at 933 E.
224th Street, Bronx, NY 10466." It is clear from context,
however, that Bah intended to state that the notice of decision
arrived in May - June 1996.
First, both Bah's affidavit (in paragraph 6) and his sworn
correction to the affidavit state that Bah told Jobe about the
notice from the Immigration Court prior to Jobe's arrest. The
exact date of Jobe's arrest is not in the record, but Jobe's
March 10, 1997 appeal to the BIA quite clearly indicates that
Jobe was detained at that time. It is thus evident that Bah
received the notice well before the May-June 1997 time-frame
referenced in the sworn correction.
Second, throughout these proceedings, there never has been
any suggestion that the notice of deportation was lost in the
mail for nearly a year and arrived at a time when the BIA
already had under advisement Jobe's appeal of the denial of the
motion to reopen. Indeed, there never has been a suggestion
that the arrival of the notice was in any way untimely, as there
surely would have been had that in fact been the case. Thus,
already knowing (as we do) that (1) Bah's sworn correction is
mistaken insofar as it refers to May-June 1997; and (2) notice
of a ruling handed down in Boston on May 22, 1996 is likely to
reach New York by mail sometime around May-June 1996, the
logical inference is that Bah (who swore out the correction in
September 1997) inadvertently substituted "1997" for the
intended "1996."
Third, and perhaps most importantly, Jobe bears the burden
of making a prima facie showing of entitlement to equitable
tolling, and therefore of filling in any gaps in the record
regarding whether his is a case warranting equitable relief. On
this point, we regard it as particularly telling that Jobe has
failed throughout these proceedings to offer any explanation for
the discrepancy between the date of the in absentia deportation
order and the dates referenced in Bah's sworn correction to his
affidavit, even in the face of (1) our request that he address
his factual entitlement to equitable tolling in our solicitation
of supplemental briefs following the granting of the petition
for rehearing en banc; and (2) the dissent from the now-
withdrawn panel opinion, which argued that Bah's sworn
correction obviously substituted "1997" for the intended "1996."

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the notice.

Thus, even if we assume that "exceptional

circumstances" caused Jobe to miss his hearing, and even if we

credit the unsworn statement in Jobe's brief which suggests that

Jobe did not actually ascertain that he had been ordered deported

until December 1996, we are left with Bah's two uncontradicted

sworn statements, put in the record by Jobe himself, which

combine to establish that, in May or June of 1996, several months

before the expiration of the 180-day time period set forth in INA

§ 242B(c)(3)(A), Jobe learned that an IJ had taken some action on

his asylum application and was advised to consult an attorney

immediately. Despite this knowledge and advice, Jobe took no

action to protect his rights for more than half a year. In our

view, this fact conclusively establishes that Jobe was

insufficiently diligent in pursuing his asylum application to

warrant the provision of any equitable relief that might be

available under the statute. So too does this fact fatally

undermine the premise of the as-applied due process argument Jobe

presses in his appellate brief: that his counsel's

ineffectiveness was the cause of his failure to file a timely

motion to reopen his deportation proceedings and rescind the

deportation order.

III.

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 For the reasons stated, we do not decide whether the

equitable tolling doctrine applies to INA § 242B(c)(3)(A) but

rather dismiss Jobe's petition because he is not factually

entitled to equitable tolling and because application of the

statute in these circumstances does not deprive him of due

process.

Petition dismissed. Dissenting opinion follows.

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 BOWNES, Senior Circuit Judge, with whom LIPEZ, Circuit

Judge, joins (dissenting). I dissent for two reasons. First,

I do not think there is a sufficient basis to find that Jobe had

notice of the IJ decision to deport him in absentia well before

the expiration of the 180-day time period set forth in

INA § 242B(c)(3)(A). Second, even if Jobe received such notice,

that fact alone does not establish that the running of the 180-

day period for filing a motion to reopen should not be equitably

tolled. The majority says Jobe was insufficiently diligent in

pursuit of his rights. That diligence analysis requires

consideration of other factors, particularly Jobe's alleged

reliance on an attorney who may have represented him

ineffectively. Without further fact-finding, we cannot know the

circumstances surrounding Jobe's untimely motion to reopen, and

so cannot fairly dispose of his case. Regrettably, the majority

does the fact-finding here. That is not a proper appellate

function.

I.

The majority finds “that in May or June of 1996,

several months before the expiration of the 180-day time period

set forth in INA § 242B(c)(3)(A), Jobe learned that an IJ had

taken some action on his asylum application and was advised to

consult an attorney immediately. Despite this knowledge and

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advice, Jobe took no action to protect his rights for more than

half a year.” I do not think the majority's reasoning withstands

scrutiny. It depends in large part upon the interpretation of

two affidavits of a presumed friend of Jobe, Sulayman Bah. The

first affidavit is dated 4/August/1997. There are no dates in

the body of the affidavit. It states as follows:

AFFIDAVIT OF SULAYMAN BAH

I, SULAYMAN BAH, having been duly sworn
upon oath, do hereby depose and say:

1. My name is Sulayman Bah and I live at
933 E. 224th Street, #1A, Bronx, New York
10466.

2. I served as a mediator between Sulay
Jobe and Attorney Earl David.

3. Sulay Jobe asked me if I knew of any
New York Attorneys because attorneys in Rhode
Island are extremely expensive. I introduced
Sulay Jobe to Earl David. Attorney David
charged Sulay Jobe $600.00 for his legal
services.

4. Attorney David promised to transfer
the case to New York. Attorney David told me
that he had written for the case to be
transferred from Boston to New York. I
believed him and told Sulay Jobe to disregard
the hearing date scheduled for Boston. I
told Sulay Jobe that Immigration will inform
him of his new Court date in New York.

5. The next letter addressed to Sulay
Jobe was a ruling from the Immigration Court
that was done in Sulay’s absence. I advised
Sulay of this letter and told him to see an
Attorney immediately.

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 6. I found out shortly thereafter that
Sulay had been arrested by Immigration.

The second affidavit is to “correct the record in

the matter of Sulay Jobe.” It was executed on

September 11, 1997. It states:

I, Sulaman Bah, being duly sworn, deposes and
states the following under penalty of
perjury: I would like to correct the record
in the matter of Sulay Jobe. I told Mr. Jobe
to disregard the hearing date since I was
told by Mr. David that he wrote a letter to
transfer the file. When the notice of
decision came to the New York address, on or
about May - June, 1997, I received the notice
of decision from the Court at 933 E. 224th
Street, Bronx, NY 10466. I immediately
contacted Mr. Jobe regarding this notice. I
then left the country and later on heard that
Mr. Jobe was arrested.

X /s/ Sulaman Bah
Sulaman Bah

The majority makes the rather remarkable finding: “It

is clear from context, however, that Bah intended to state that

the notice of decision arrived in May - June 1996.” Majority Op.

at 11.

This affidavit was given “to correct the record in the

matter of Sulay Jobe.” How do we know that Bah intended to state

that the notice of decision arrived in May-June 1996? The only

dates given in his affidavit are “on or about May-June 1997.”

How can the majority be so sure that the dates Bah gave in his

corrected affidavit were wrong? We know nothing about Bah except

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what he states in his affidavits. His deposition was not taken.

We have no way of judging either his credibility or competence.

The dates of the receipt of the notice found by the

majority must be established by a preponderance of the evidence.

The court attempts to meet this burden by stating

Thus, already knowing (as we do) that
(1) Bah’s sworn correction is mistaken
insofar as it refers to May-June 1997; and
(2) notice of a ruling handed down in Boston
on May 22, 1996 is likely to reach New York
by mail sometime around May-June 1996, the
logical inference is that Bah (who swore out
the correction in September 1997)
inadvertently substituted “1997" for the
intended “1996.”

Majority Op. at 11. But we do not know in the true sense of the

word anything but what is stated in the affidavit. Bah may have

been mistaken about the dates he stated in the affidavit but we

do not know that he was.

It seems significant that the only substantive

difference between Bah's first and second affidavit is the

inclusion of dates. If the affidavit was amended to clarify the

timing of events, which seems to have been the intent, this makes

it more likely that the May-June 1997 date is correct. If

providing a date was the purpose of the amendment, we can presume

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that particular attention was given to the accuracy of the

reported date.1

It should also be noted that Bah's second affidavit

states that he received notice of the decision at 933 E. 224th

Street, Bronx, NY 10466. His first affidavit confirms this

address, but includes an apartment number, #1A. Attorney David's

venue change request states that Jobe lived at the New York

address, but at apartment #1. We do not know whether the correct

address was the one with apartment #1, the one with apartment

#1A, or the one without any apartment number. It is, at least,

possible that these variant addresses might have affected the

date Bah received the order.

The majority also states: “Indeed there never has been

a suggestion that the arrival of the notice was in any way

untimely, as these surely would have been had that in fact been

the case.” Majority Op. at 11. This, of course, ignores that

there is only one date given in Bah’s two affidavits. The second

affidavit states that “the notice of decision came to the New

York address, on or about May-June 1997.” The decision of the

1
We do not even know that the same person made out both
affidavits. The name of the affiant in the first affidavit is
given as Sulayman Bah; in the second the first name is Sulaman.
I do not think it fair to make a finding that results in
deportation of an individual by changing dates in a sworn
affidavit which may have been executed by two different
affiants.

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court assumes that there is always an orderly and logical

sequence to a chain of events. Such a belief is natural to

judicial thinking and analysis. But as Justice Holmes pointed

out: “The life of the law is not logic but experience.” And

experience teaches that many things happen that cannot be

explained by logical analysis. There are at least three

explanations that might account for the dates mentioned in Bah's

affidavits: a late mailing by the INS, a late delivery by the

post office, or a delivery to a wrong address.

I do not think that the affidavits can or should be

used for finding, as the court does, that “Jobe took no action to

protect his rights for more than half a year.” Majority Op. at

12. It constitutes appellate findings of facts based on

inferences and unsubstantiated assumptions. The only way to

determine the facts in this case is to have a hearing before the

Immigration Court.

II.

Aside from the uncertainty about the date on which Jobe

received notice of the IJ's decision, the facts here do not

establish Jobe's ineligibility for equitable tolling. The

majority relies exclusively upon one "fact," based on one of

Bah's affidavits, to conclude that Jobe was insufficiently

diligent in pursuing his asylum application, and hence he would

-21-
not be entitled to equitable relief. That one fact is Bah's

assertion that he advised Jobe of the IJ's decision immediately

after he received it and told Jobe to see an attorney. But that

one fact does not exhaust the reasonable diligence inquiry when

the record strongly suggests Jobe's dependence on others to

protect his rights, including an attorney who may have been

consistently ineffective in protecting Jobe's rights prior to the

May 22, 1996 hearing, and subsequent to the issuance of the in

absentia deportation order.

From the time his hearing before the IJ was scheduled,

Jobe relied upon his friend Bah, as well as Attorney David, for

guidance in his immigration proceedings. Jobe states in his

affidavit (drafted by a translator fluent in both English and

Jobe's native Wolof), "I do not read, write or speak the English

language." Jobe sought the assistance of Bah in obtaining

counsel, and the two of them met with Attorney David in New York

with Bah acting as translator. The nature of the attorney-client

relationship established at their initial meeting is unclear.

Jobe's affidavit suggests his understanding that David would

represent him in his asylum claim generally: "I retained Attorney

Earl S. David to represent me in my asylum proceedings." This

understanding would have been reasonable, based on the fact that

David represented Bah in the immigration proceedings resulting in

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his successful asylum claim. Guided by Bah, Jobe would likely

seek the same service from David. Nevertheless, David's letter

of justification to the Board of Immigration Appeals defending

himself against charges of ineffective assistance of counsel

suggests that he was retained exclusively to obtain a change of

venue for Jobe's asylum hearing, a seemingly minimal task for the

$600 fee that Bah says David received. Thus, at the beginning of

the attorney-client relationship, there may have been

miscommunications between Jobe and David.

With Bah's assistance, Jobe requested that David obtain

a transfer of his Boston-based immigration court hearing to his

new home, New York. As he recalls, "Attorney David told me that

he would be transferring his case to New York." Bah corroborates

this account, while David denies it, saying that "[u]nder no

circumstances did I promise to transfer the file as the power to

do so arises from the government, not this office."

Prior to the May 22nd hearing date, Jobe says he again

contacted David, through Bah, to say he would be unable to make

the Boston court appearance due to a back injury. According to

Jobe, "Attorney David told [Bah] that [the] case had already been

transferred to New York and that a new hearing date would be

set," a communication that David again claims never happened.

Indeed, David says he told Jobe through Bah that he would have to

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attend the hearing on May 22, 1996 in Boston regardless of the

outcome of the change of venue request.

In reality, David's request for a change of venue,

submitted on April 12, 1996 with no supporting evidence or

affidavits, was never adequate to win a transfer. A change of

venue request may be granted by an IJ for "good cause." 8 C.F.R.

3.20. In seeking a change of venue, "the mere fact that an

applicant allegedly resides . . . in another city, without a

showing of other significant factors associated with such

residence, is insufficient." Matter of Rahman, 20 I & N Dec. 480

(BIA 1992). Yet that residence in another city is all David

offered to the IJ to support the change of venue request.

Furthermore, it is difficult to credit David's insistence that he

told Jobe he had to appear in Boston on May 22 under any

circumstances, ready, apparently, to represent himself, after

Jobe had retained David to represent him in his asylum

proceedings. Jobe hired David because he could not effectively

represent himself. Yet Attorney David did not attend the May

22nd sitting in Boston. Moreover, if David was so sure that the

May 22 hearing would take place, and he told Jobe to be there

without David's representation, did he give Jobe any advice on

what he had to do to protect his interests? Apparently not.

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David says he just told Jobe to be there, an ineffective

contribution even on David's version of the facts.

David characterizes the events surrounding the transfer

request and missed hearing as "an unfortunate miscommunication."

Indeed, it was an unfortunate miscommunication, depriving Jobe of

the opportunity to present his asylum claim and resulting in the

issuance of an in absentia deportation order. It was also

another miscommunication that seemed to plague the David-Jobe

attorney-client relationship.

We also do not know from this record what Jobe

understood about the information given to him by Bah concerning

the decision of the IJ after Jobe failed to appear in Boston on

May 22. In his affidavits, Bah only indicates that he "contacted

Mr. Jobe regarding this notice," and states his impression that

"a ruling from the Immigration Court . . . was done in Sulay's

absence." Bah does not say that he told Jobe of his imminent

deportation. In addition, it is not clear from the record that

Jobe ever took possession of the correspondence. The best

evidence that Jobe did not understand the effect of the order is

that he sought out the Immigration Office in December regarding

his employment authorization, a risk an immigrant would be

unlikely to take if he understood his deportation was imminent.

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If Jobe did not actually receive notice of the IJ's in absentia

decision, he then learned of his deportation status only on

December 4, 1996 when he sought employment. The timespan between

this notification and the February 11, 1997 filing of motions to

reopen and to stay deportation cannot be characterized as a

failure to take action, as the majority suggests.

Meanwhile, having advised Jobe "to see an Attorney

immediately," Bah, Jobe's only liaison to his attorney, leaves

the country. As noted, Jobe states in his affidavit that he was

relying on Attorney David to represent him in his asylum

proceedings. David apparently had a more limited view of his

obligation to Jobe, possibly leaving Jobe to rely on an attorney

who felt no obligation to help him even after the issuance of the

in absentia deportation order. There is some evidence that David

himself learned of the deportation order. He writes that,

apparently after issuance of the IJ decision: "I tried to reach

my client by mail and by the number I had in my file but it was

to no avail." While David had failed to file a EOIR-28 "Notice

of Entry of Appearance" form with the INS,2 another suggestion of

ineffective representation, the fact that David's address appears

2
The BIA Practice Manual indicates that an entry of
appearance must be filed upon "the first appearance of an
attorney or representative," as well as with the filing of an
appeal, a motion to reconsider, a motion to reopen, and when
there is a change of business address.

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prominently on the request for change of venue may have been

enough for him to be listed as the attorney of record in Jobe's

immigration court proceedings. If David did know of the in

absentia deportation order, there is no evidence that he made any

effort to file a motion to reopen in a timely fashion, despite

his apparent awareness that an "unfortunate miscommunication"

between himself and Jobe contributed to Jobe's failure to appear

in Boston.

Without clarification of David's obligation to protect

Jobe after the issuance of the in absentia deportation order, and

David's apparent inaction despite any such obligation, a real

issue of ongoing ineffective assistance during this critical

period exists, which would further account for Jobe's delay in

seeking relief from the in absentia deportation order.

In summary, without the support of Bah to comprehend

the English language, and perhaps without the support of a

reliable attorney who Jobe thought was protecting his interests,

it may have been difficult for Jobe to understand his peril and

to press his claim more diligently. Yet the majority sees no

relationship between these facts and the equitable tolling

doctrine. Whether a party is reasonably diligent in ascertaining

their claim is a matter of fact. See Salois v. Dime Sav. Bank,

128 F.3d 20, 26 (1st Cir. 1997). In this case, there has been no

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fact-finding on the diligence issue because the BIA concluded

that the 180-day time limit was not subject to equitable tolling.

As a legal proposition, that conclusion is wrong. See Lopez v.

INS, 184 F.3d 1097, 1100 (9th Cir. 1999). Equitable tolling does

apply to the 180-day time limit. There is conflicting and

inadequate evidence as to Jobe's notice of the IJ decision, his

capacity to pursue a timely motion to reopen, and the burdens

imposed by ongoing ineffective assistance of counsel. There has

been no chance for Jobe to make a showing as to his diligence,

and the case should not be disposed of on the basis of one fact

which, upon fair examination, may show little about Jobe's

reasonable diligence in pursuing his rights.

III.

I think it important to focus on the situation that led

to this case. Jobe was a native and citizen of Gambia where he

had been employed as a chauffeur for a deposed president's

Minister of Education and Agriculture. According to the record,

Jobe claimed that he had reason to fear that he would be hurt

and/or killed if he were to return to Gambia. Jobe overstayed

his visa and though he was undetected by the INS, he presented

himself and sought political asylum. When the INS received this

request, they denied the request for political asylum and put him

into deportation proceedings. The INS issued an Order to Show

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Cause and told him that he could request political asylum at his

deportation hearing. We know the rest: he failed to appear at

his May 22 hearing and was ordered deported. Therefore he never

had the opportunity to request political asylum at a deportation

hearing; his ultimate goal when he presented himself before the

INS.

I do not think it fair or just to deport an individual

and put his life in danger on the basis of appellate fact-

finding. We should rule, as the panel did originally, that the

180-day time limit for reopening is subject to equitable tolling,

that ineffective assistance of counsel may provide a basis for

the application of the equitable tolling doctrine, and that there

should be a hearing by the IJ to determine whether the running of

the 180-day period for filing a motion to reopen should be

equitably tolled on the facts of this case. If so, there should

be a hearing on Jobe's motion to reopen, giving him an

opportunity to make the case that he should be given a new

hearing on his asylum application.

For the foregoing reasons, I respectfully dissent.

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