United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-1687 ___________________________ Martin Capiz-Fabian, also known as Martin Fabian Capiz lllllllllllllllllllllPetitioner v. William P. Barr, Attorney General of the United States lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: January 17, 2019 Filed: August 14, 2019 ____________ Before LOKEN, GRASZ, and STRAS, Circuit Judges. ____________ GRASZ, Circuit Judge. In 1988, Martin Capiz-Fabian (“Capiz”), a native and citizen of Mexico, filed an application for Temporary Resident Status as a Special Agricultural Worker (“SAW”). More than thirty years later, Capiz petitions us to hold that the Administrative Appeals Office (“AAO”) erred in denying his appeal for failure to comply with the agency deadline. Capiz argues his appeal was timely under the doctrine of equitable tolling. We conclude equitable tolling is not appropriate on the facts of Capiz’s case and therefore deny his petition. I. Background Capiz came to the United States in 1985. In 1988, Capiz filed a request for adjustment of status under the SAW program. 8 U.S.C. §1160. Capiz’s application hit a snag when the Immigration and Naturalization Service (“INS”) determined the application was missing a required human immunodeficiency virus (“HIV”) serologic test result. INS mailed Capiz a request for the information at his address of record. INS rejected Capiz’s SAW application once the 45-day deadline for submitting the test results had passed. Later in 1990, INS mailed Capiz a notice that his SAW application had been denied, but he claims he did not receive it. Despite purportedly receiving no communications from INS — neither the denial of his application nor confirmation his application had been granted — Capiz did not take any action until 1995. That year, he visited an immigration office and inquired about updating his work permit. The office informed Capiz his case had been denied. The reference was likely about Capiz’s SAW application, but Capiz “understood this to mean that the case that had been denied was renewing [his] work permit.” (emphasis added). Capiz alleges that when he filed a Notice of Appeal of Decision in October of 1995, he remained confused and thought the appeal pertained to his work permit. The form had a section with instructions to “state reasons for this appeal.” Capiz stated he was filing the appeal “because that is what [an INS office] told me to do.” Another eight years lapsed before Capiz took any further action other than the occasional renewal of his work permits. In 2003, an attorney obtained and reviewed copies of Capiz’s records and observed Capiz’s SAW application had been denied in 1990 for failing to comply with the HIV serologic test requirement. With the -2- attorney’s help, Capiz took the required missing medical exam, completed the forms, and submitted them with a motion requesting acceptance of the late filing. At the time the information was submitted, Capiz’s 1995 pro se appeal was still pending. In July 2004, the AAO officially denied Capiz’s 1995 appeal. In 2014, the ...
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