Torres v. Attorney General of the United States
Opinion of the Court
OPINION
Gisell Torres, a native and citizen of Peru, was admitted to the United States in April 1990, along with her parents and sister, on a B-l/B-2 visa. At the time, Torres was three years-old. In 1998, Torres and her family were charged with overstaying them period of admission. See Immigration and Nationality Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B)]. The family conceded removability, and Torres’ father applied for asylum and withholding of removal. After the Immigration Judge (“IJ”) denied relief, the Board of Immigration Appeals (“BIA”) affirmed without opinion on June 7, 2002, permitting each family member to voluntarily depart within 30 days.
The family did not depart, however. On May 12, 2008, Torres’ parents were taken into custody and were eventually removed from the United States. On June 19, 2008, Torres married a United States citizen, who later filed a petition for alien relative (Form 1-130) on her behalf.
We have jurisdiction over the petition for review pursuant to INA § 242 [8 U.S.C. § 1252]
Torres plausibly claims that she was unaware of the final removal order that the BIA issued in June 2002, when she was 15 years-old. Torres and her family apparently had no further contact with the Government until May 12, 2008, when Department of Homeland Security (“DHS”) officers took her parents into custody. Torres was instructed to report to the DHS office in Newark, New Jersey. Torres appeared there on June 12, 2008, and was given an Order of Supervision, directing her to report back on July 24, 2008, with an airline ticket to Peru.
On June 26, 2008, Torres filed her motion to reopen to apply for adjustment of status based on her recent marriage to a United States citizen. See id. at 252-53 (holding that a petitioner who seeks equitable tolling must exercise due diligence in pursuing the case). Torres is eligible to apply for adjustment of status on the state of the record. She married a U.S. citizen on June 19, 2008, her husband filed an I-130 petition on August 21, 2008, and the petition was approved on April 2, 2009. Under the circumstances presented in this case, and given Torres’ diligent efforts in pursuing adjustment of status, see Mah-mood, 427 F.3d at 252-53, we conclude that the BIA abused its discretion in not equitably tolling the limitations period for filing a motion to reopen.
For the foregoing reasons, we will grant the petition for review, vacate the BIA’s order of July 28, 2008, and remand the case with instructions to reopen the proceedings.
. The 1-130 petition was filed on August 21, 2008, and it was approved on April 2, 2009.
. In this proceeding, we cannot review the BIA’s original final order of removal because the petition For review was timely only as to order denying reopening. See INA 242(b)(1) [8 U.S.C. § 1252(b)(1)]; McAllister v. Att’y Gen., 444 F.3d 178, 184-85 (3d Cir. 2006).
Reference
- Full Case Name
- Gisell TORRES v. ATTORNEY GENERAL OF the UNITED STATES
- Status
- Published