In the Matter of Venir Canaba

Brief of Appellant before the Board of Immigration Appeals

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The issue was whether a federal statute of limitations for filing an I-360 Widow's Petition was subject to "equitable tolling" where the petitioner has been the victim of fraud and files the petition more than two years after her spouse's death.

Ms. Venir Canaba was sponsored by her husband (a U.S. citizen) for Lawful Permanent Residence (also known as a "green card.") Unfortunately, her husband died before the petition was approved. Section 201 of the Immigration and Nationality Act (INA), as amended, provides that the widow/widower of a U.S. citizen can file a visa petition on her/his own behalf if s/he does so within two years after the death of the U.S.-citizen spouse.

Ms. Canaba paid a "notario" to file an I-360 petition on her behalf. He assured her over the time that her petition was pending at the agency. However, she realized only after two years had passed since her husband's death that no I-360 had been filed for her. She thereupon hired an attorney who filed one immediately for her.

The DHS initially approved the I-360, and then revoked the approval, relying on the fact that she had filed after the two-year period had passed.

We argued before the Board of Immigration Appeals that the two-year deadline was subject to "equitable tolling," and that the two-year period only began after she had learned of the fraud. The Board agreed, and reversed the DHS with instructions either to grant her Lawful Permanent Resident status or to explain why equitable tolling did not apply in her case.

DHS, without responding to the Board, ultimately granted her LPR status.

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Reference Info:Appellate Brief | Federal, 9th Circuit | United States


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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