Gonzalez v. INS

US Court of Appeals for the 9th Circuit

Filed December 31, 2003

The Ninth Circuit Court of Appeals denied the petitioner’s petition for review of the BIA’s order affirming the denial of her application for adjustment of status. 

The Petitioner entered the United States in 1991 without inspection.  She later filed an application for asylum, withholding of removal and voluntary departure.  While her application was pending, the Department of State selected her application for an immigration visa through the Diversity Immigration Visa Lottery Program (DV Lottery Program) for 1997 as eligible.  As a result, the Petitioner submitted an application to the INS for adjustment of status and withdrew her application for asylum and withholding of removal.

The DV Lottery Program expired on September 30, 1997.  At that time, the Petitioner did not receive a diversity visa, and therefore did not have a visa in support of her application for adjustment of status.

As a result, the IJ denied the Petitioner’s adjustment application and found her to be deportable.  The Petitioner argued on appeal that the doctrine of equitable tolling should be applied to extend the one-year statutory requirement for the DV Lottery Program because she was defrauded by a notary when applying for her adjustment of status.

The doctrine of equitable tolling is an equitable remedy available to courts of equity.  When equity demands, a court may apply the doctrine to toll, or pause, time when a statutory time requirement exists.

In this case, the statute required the Petitioner to provide a visa before the IJ could grant an adjustment of status.  Aliens may only receive a diversity visa through the DV Lottery Program only in the year in which they were selected as eligible.  Since the Petitioner did not receive a visa in 1997, therefore, she could not produce a visa to the IJ, and therefore was ineligible for an adjustment of status. 

The court also held that the doctrine of equitable tolling could not be applied to “override Congress’s explicit public policy determinations,” including the one-year statutory deadline of the DV Lottery Program.