Dartora v. United States

CARLA DARTORA, A# 088-469-583, Plaintiff, v. UNITED STATES OF AMERICA; MERRICK GARLAND, United States Attorney General;ALEJANDRO MAYORKAS, Secretary of the Department of Homeland Security;TRACY RENAUD, Director of the United States Citizenship and Immigration Services;SUSAN DIBBINS, Acting Chief, Administrative Appeals Office;CONNIE NOLAN, Associate Director, Service Center Operations, Defendants.

No. 4:20-cv-05161-SMJ

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

June 7, 2021

ORDER DENYING UNITED STATES' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT

Before the Court is the United States' Motion to Dismiss Plaintiff's First Amended Complaint, ECF No. 22. The United States moves to dismiss for failure to state a claim, arguing that Plaintiff did not sue within the statute of limitations or, in the alternative, that Plaintiff does not state a claim that the Administrative Appeals Office (AAO) did not arbitrarily and capriciously deny Plaintiff relief. The Court previously dismissed Plaintiff's original Complaint, determining that the BIA did not have jurisdiction to decided Plaintiff's appeal and that Plaintiff did not timely file this action. ECF No. 20. The Court granted leave to amend to state a claim for entitlement to equitable tolling. Id. at 11. Plaintiff filed her Amended Complaint, and this motion followed. ECF Nos. 21, 22. Having reviewed the record in this matter, the Court is fully informed and denies the motion to dismiss.

FACTS ALLEGED BY PLAINTIFF

Plaintiff is a native and citizen of Brazil who married a United States citizen on August 31, 2006. ECF No. 21 at 4. Her husband, Chris, was abusive and spent portions of their relationship in jail. Id. at 7-9. Plaintiff lived with Chris for a few weeks in April 2004, as well as from May 2005 until March 2006. Id. at 7-8.

Plaintiff filed a Form I-360 with the United States Citizenship and Immigration Services (USCIS) Vermont Service Center (VSC), which alleged that she was a battered immigrant spouse under Section 204(a)(1)(A)(iii) of the Immigration and Nationality Act (INA) and the Violence Against Women Act (VAWA). ECF No. 21 at 4. VSC denied her petition. Id. at 10. Plaintiff appealed to the AAO, within USCIS, which dismissed her appeal on August 2, 2011. Id. at 11-12.

Plaintiff then tried to appeal the AAO's decision to the Board of Immigration Appeals (BIA), the appellate board within the Department of Justice. Id. at 13. Afterseveral form denials, the BIA issued a letter decision dismissing the appeal for lack of jurisdiction on April 14, 2015. Id. at 13-15.

At that point, Plaintiff's former counsel "presented Plaintiff with the possibility of judicial review by federal court for the first time." Id. at 15. But she did not notify Plaintiff of any statute of limitations. Id. On August 25, 2016, former counsel told Plaintiff she would file her appeal "within the next few weeks." Id. On November 14, 2017, she asked Plaintiff if she still wanted to pursue an appeal. On December 15, 2017, she "again reassured Plaintiff that the appeal would be submitted after '[the following] week.'" Id. From that time until June 2018, former counsel did not respond to Plaintiff's requests for updates. Id. In June, she "promise[d]" to file the appeal by "the end of next week or early the following week." Id. In October 2018, former counsel left her firm and arranged to continue as pro bono counsel for Plaintiff. Id. at 16. In March 2019, former counsel "confirmed" that the appeal was "95% complete." Id. In April, she stated that she was working with other attorneys on similar cases. Id. That was the last time former counsel contacted Plaintiff.

In February 2020, Plaintiff conducted research and discovered the applicable statute of limitations. Id. She contacted former counsel and asked her to respond within a week. Id. She did not. Id. Plaintiff asked former counsel to return her fileto her former law firm, who then worked with Plaintiff to file the instant action on September 15, 2020. Id. at 16-17; see also ECF No. 1.

LEGAL STANDARD

Under Rule 12(b)(6), the Court must dismiss a complaint if it "fail[s] to state a claim upon which relief can be granted," including when the plaintiff's claims either fail to allege a cognizable legal theory or fail to allege sufficient facts to support a cognizable legal theory. Kwan v. SanMedica Int'l, 854 F.3d 1088, 1093 (9th Cir. 2017). The Court may dismiss a complaint based on an affirmative defense when the "allegations in the complaint suffice to establish" the defense. Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013) (citations omitted); see also Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (When the running of the statute is "apparent on the face of the complaint, the defense may be raised by a motion to dismiss."). To survive a Rule 12(b)(6) motion, a complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Facial plausibility exists when a complaint pleads facts permitting a reasonable inference that the defendant is liable to the plaintiff for the misconduct alleged. Iqbal, 556 U.S. at 678. Plausibility does not require probability but demands something more than a mere possibility of liability. Id. While the plaintiffneed not make "detailed factual allegations," "unadorned" accusations of unlawful harm and "formulaic" or "threadbare recitals" of a claim's elements, supported only "by mere conclusory statements," are insufficient. Id.

In deciding a Rule 12(b)(6) motion, the Court construes a complaint in the light most favorable to the plaintiff, assumes the facts as pleaded are true, and draws all reasonable inferences in his or her favor. Ass'n for L.A. Deputy Sheriffs v. County of Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011); Iqbal, 556 U.S. at 678. Even so, the Court may disregard legal conclusions couched as factual allegations. See id. In ruling on a motion to dismiss, the Court may consider materials "attached to the complaint" without converting the motion into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

DISCUSSION

A. Plaintiff has pleaded additional facts which state a claim for entitlement to equitable tolling

As explained in the Court's previous Order, ECF No. 20, every "civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of the action first accrues." 28 U.S.C. § 2401(a). Challenges to agency decisions under the APA are subject to this general six-year limitations period. Perez-Guzmen v. Lynch, 835 F.3d 1066, 1077 (9th Cir. 2016). The final agency decision from which the Court must calculate the limitation periodis the AAO's August 2, 2011 decision. See ECF No. 21 at 11-12; see also Herrara v. U.S. Citizenship and Immigr. Servs., 571 F.3d 881, 885 (9th Cir. 2009). The statute of limitations, without any tolling, thus expired on August 2, 2017, and Plaintiff did not file this action until September 15, 2020.

Equitable tolling is "unavailable in most cases." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002); see also Irwin v. Dep't of Veteran Affairs, 498 U.S. 89, 96 (1990) (courts apply the doctrine of equitable tolling "sparingly."). "[T]he threshold necessary to trigger equitable tolling . . . is very high, lest the exceptions swallow the rule." Miranda, 292 F.3d at 1066 (internal quotation and citation omitted). To establish equitable tolling, Plaintiff must show "(1) that [s]he has been pursuing h[er] rights diligently, and (2) that some extraordinary circumstance stood in her way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

"[A]ll one need show is that by the exercise of reasonable diligence the proponent of tolling could not have discovered the essential information bearing on the claim." Socop-Gonzalez v. INS, 272 F.3d 1176, 1184-85 (9th Cir. 2001). Courts may toll deadlines "because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error." Lona v. Barr, 948 F.3d 1225, 1230-32 (9th Cir. 2020) (quoting Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)). "[M]aximum diligence possible" is not required, only "due" or "reasonable" diligence. Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011).

Further, an "extraordinary circumstance" must be outside the litigant's control. Menominee Indian Tribe of Wisc. v. United States, 136 S. Ct. 750 (2016). Mistake of law alone is not an "extraordinary circumstance." See Weaver v. Alameida, 225 Fed. App'x 598, 599 (9th Cir. 2007); see also Torres v. County of Lyon, 3:07-CV-538-RAM, 2009 U.S. Dist. LEXIS 29394, at *20 (D. Nev. Mar. 31, 2009). And while "a garden variety claim of excusable neglect . . . does not warrant equitable tolling, . . . more serious instances of attorney misconduct" may. Holland v. Florida, 560 U.S. 631, 652 (2010) (reasoning that repeated ethical violations, including ignoring client communications, may constitute an extraordinary circumstance which warrants equitable tolling); see also Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011) ("Equitable tolling may be warranted in instances of unprofessional attorney behavior"). Courts may consider factors like counsel's ethical obligations and jurisprudence on counsel's conduct in similar areas of law. Nehad v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008). "[A]ffirmatively misleading a petitioner to believe that a timely petition has been or will soon be filed can constitute egregious professional misconduct." Luna v. Kernan, 784 F.3d 640, 647 (9th Cir. 2015).

In cases like Plaintiff's, courts have applied equitable tolling. For example, in Avagyan, counsel met with the petitioner only a few times and did not advise him of filing requirements. 646 F.3d at 676. The court...