Kuusk v. Holder, No. 12-2367

Decided: October 16, 2013

The Fourth Circuit denied Svetlana Kuusk’s untimely petition for review of a removal order by the Board of Immigration Appeals (“BIA”).

Svetlana Kuusk entered the United States in 2003 on a four-month visa, which she overstayed. When summoned for removal proceedings, Kuusk asked the Immigration Judge (“IJ”) to deny her removal based on asylum and withholding. The IJ denied her applications and Kuusk appealed to the Board of Immigration Appeals (“BIA”). While her appeal was pending with the BIA, Kuusk married a United States citizen. In a 2011 meeting with a United States Customs and Immigration Services (“USCIS”) officer, the officer informed Kuusk that she could file directly for a marriage based green card because her marriage to a United States citizen. Kuusk allegedly interpreted the advice of the USCIS officer to mean that she no longer needed to pursue her case before the BIA regarding the removal proceedings. After advising her attorney of her plans to pursue the marriage based green card, her attorney instructed her that she would still need to file a motion with the BIA to reopen her case within 90 days after the BIA’s final decision. The BIA denied her appeal based on her asylum and withholding. Kuusk neglected to file a timely motion to reopen the case. In March 2012, the USCIS denied Kuusk’s application for a green card based on her marriage because she subject to the earlier deportation order. Subsequently, Kuusk filed an untimely motion with the BIA to reopen her removal proceedings on the basis of equitable tolling. Kuusk argued that her motion was untimely because of her reliance on the USCIS officer’s allegedly incorrect advice. The BIA denied Kuusk’s motion to reopen her case, finding that she failed to show the necessary requirements for equitable tolling. Kuusk appealed the BIA’s decision to the Fourth Circuit.

On appeal, Kuusk first asserted that the BIA erred in applying the general standard for equitable tolling, arguing that a more lenient standard was required in the immigration context. The Fourth Circuit disagreed. The Fourth Circuit first held that the limitations period for filing a motion to reopen removal proceedings is subject to equitable tolling. Then, the court affirmed the standard used by the BIA. The BIA followed the general standard for equitable tolling articulated in Harris, in the context of a petition for a writ of habeas corpus. In Harris, the court held that equitable tolling was only proper when: “(1) the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant; or (2) extraordinary circumstances beyond plaintiff’s control made it impossible to file the claims on time.”  The court conceded that the Harris standard was rigorous, but found that such a heavy burden was necessary to restrict equitable relief to those situations where “it would be unconscionable to enforce the limitation period against the party and gross injustice would result” by enforcing it.  Furthermore, the court noted that other circuits similarly apply a general standard for equitable tolling for immigration proceedings. Thus, the court held that the BIA applied the appropriate standard.

Kuusk then argued that the BIA incorrectly applied the Harris standard to the facts of her case because the wrongful conduct of the USCIS officer prevented her from asserting her claim. The Fourth Circuit again disagreed. Kuusk contended that based on the advice of the USCIS officer, she believed that filing a motion to reopen her removal proceedings was unnecessary, triggering the first element of equitable tolling. The court found that Kuusk’s simple misunderstanding of the officer’s instructions was not enough to trigger the first element of Harris. Importantly, the court found that USCIS officer did not actually give Kuusk wrong advice. It was true that she needed to file directly for a green card; she needed to appeal the decision from the BIA as well. Furthermore, Kuusk’s attorney advised her of the need to appeal the BIA’s decision. Therefore, the court affirmed the BIA’s denial of Kuusk’s untimely petition for review.

Full Opinion

– Wesley B. Lambert

Like us on Facebook!
Facebook By Weblizar Powered By Weblizar
Contact Information


South Carolina Law Review
701 Main Street, Suite 401
Columbia, SC 29208