Luna v. Holder

The Federal register provides sufficient notice to an alien seeking relief from a removal order; an alien’s due process rights are not infringed when a judge fails to advise the alien of his or her right to seek relief.

Luna immigrated to the United States from Mexico in 1990. In 1993, Luna was convicted of stealing. An Immigration Judge (IJ) ordered Luna removed on December 11, 2000, although Luna claims he never left the U.S. In 2007, Luna filed for a reopening of his immigration case arguing that the IJ violated his due process rights by not advising him that he was able to seek relief from the order of removal. The same IJ denied the motion and Luna appealed to the Board of Immigration Appeals (BIA) and the BIA affirmed. Luna claimed that the IJ violated his due process rights and that he is entitled to equitable tolling because he had missed the statutory deadline to file. On review, the Ninth Circuit found the instructions on when and how to reopen an immigration case are governed by § 1003.44 which are printed in the Federal Register. § 100.3.44 is sufficient to put an alien on notice that he or she can seek relief from a removal decision. Because Luna was given sufficient notice, the IJ did not violate his due process rights for failure to advise him that he had a right to seek relief from removal, and thus not entitled to equitable tolling to reopen his case. Equitable tolling may be allowed if an alien shows due diligence in filing their claim, but Luna waited six months after paying the filing fee to file his petition for relief. Such action does not meet the required showing of due diligence to receive equitable tolling. DENIED.