                                 PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 12-2367


SVETLANA KUUSK,

                  Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                  Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   September 17, 2013                 Decided:   October 16, 2013


Before MOTZ and DIAZ, Circuit Judges, and John A. GIBNEY, Jr.,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Petition for review denied by published opinion.      Judge Motz
wrote the opinion, in which Judge Diaz and Judge Gibney joined.


ARGUED: Jonathan Scott Greene, GREENE LAW FIRM, LLC, Columbia,
Maryland, for Petitioner.    Nicole N. Murley, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.    ON
BRIEF: Stuart F. Delery, Acting Assistant Attorney General,
William C. Peachey, Assistant Director, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
DIANA GRIBBON MOTZ, Circuit Judge:

      Svetlana       Kuusk,    an     Estonian-born             citizen       of     Russia,

petitions this court for review of an order by the Board of

Immigration      Appeals      (“BIA”)    denying          her     untimely     motion      to

reopen     removal     proceedings.               Kuusk     argues      that        the   BIA

erroneously      concluded     that     her      circumstances         did    not    warrant

equitable tolling of the statutory filing deadline.                                 We deny

Kuusk’s petition for review.



                                          I.

      On June 1, 2003, Kuusk entered the United States on a four-

month J-1 visa.        She overstayed her visa.                 On October 12, 2005,

she was served with a notice to appear before an immigration

judge (“IJ”).        Kuusk conceded her removability before the IJ,

but applied for asylum and withholding of removal pursuant to

8 U.S.C. § 1158 and § 1231(b)(3)(2006), respectively.                                The IJ

denied both applications.

      Kuusk timely appealed the IJ’s decision to the BIA. During

the   pendency    of   her    appeal,     Kuusk         married    a    citizen      of   the

United     States.       On    October           18,    2011,     Kuusk      attended     an

“InfoPass”    appointment       with     a       U.S.     Customs      and    Immigration

Services    (USCIS)    officer.         Kuusk          contends    that      this    officer

informed her that she “could file for a marriage-based green

card directly with the USCIS based on [her] marriage to a U.S.

                                             2
citizen . . . even though [her] case was currently on an asylum

appeal from the immigration court,” and that “if anything was

wrong with the filing, it would be rejected or [she] would be

notified.”       AR 24.     She further contends that she understood

these words to mean that she did not additionally need to pursue

her case before the BIA regarding her removal proceedings.

      A   week   after    receiving   the   USCIS   officer’s   advice,    on

October 25, Kuusk informed her immigration attorney via e-mail

of her plan “to file papers now through marriage.”              AR 36.    Her

attorney responded the same day, warning her:

      Remember that for immigrants in proceedings—getting a
      marriage green card is complicated. . . .       Also,
      please know that you need to file a motion to reopen
      your case before the BIA within 90 days of . . . its
      final decision. This deadline is firm, and if you do
      not meet it, nothing can be done. Don’t mess around,
      [and] be sure you do everything right.

Id.   On November 30, 2011, the BIA adopted and affirmed the IJ’s

denial of Kuusk’s application for asylum, and entered a final

order of removal.         Eleven days later, on December 11, Kuusk’s

attorney notified her of the denial via e-mail and warned her

that she “now ha[d] about 70 days to file a motion to reopen the

case based upon marriage to a US citizen,” and that if she

“wait[ed] beyond that period, [her] removal order w[ould] become

fixed and [she would] not be able to remain in the [United

States] legally.”        AR 37.



                                      3
      Kuusk      did   not     file    a     motion      to    reopen     her    case    within

ninety days of the BIA’s final order (i.e., by February 28).                                  On

March 22, 2012, the USCIS denied Kuusk’s I-485 application for a

green card because she was subject to a deportation order.

      Six weeks later, Kuusk filed an untimely motion to reopen

her removal proceedings to seek adjustment of her immigration

status.       Kuusk      asked        the     BIA       to    apply      equitable      tolling

principles       and    disregard           her       untimeliness        because       of   her

reliance on the USCIS officer’s assertedly incorrect advice, or

to exercise its authority to reopen her case sua sponte.

      The   BIA    denied       Kuusk’s       motion.          Applying        the   equitable

tolling standard that we have applied in other contexts, the BIA

concluded     that     Kuusk    had     failed         to    show   that:       (1) wrongful

conduct     by    the     opposing          party       prevented        her    from     timely

asserting her claim; or (2) extraordinary circumstances beyond

her   control     made    it     impossible            for    her   to    comply     with    the

statutory time limit.             See Harris v. Hutchinson, 209 F.3d 325,

330 (4th Cir. 2000).           Kuusk noted a timely appeal. ∗

      We    review      the    BIA’s        legal       conclusions       de    novo,    giving

appropriate deference to its interpretation of the Immigration

and   Nationality        Act    (INA)       in        accordance      with     principles    of


      ∗
       The BIA also declined to exercise its discretionary
authority to reopen Kuusk’s case sua sponte. Kuusk does not
appeal this portion of the BIA’s order.


                                                  4
administrative law.     Hui Zheng v. Holder, 562 F.3d 647, 651 (4th

Cir. 2009).     “We review denials of motions to reopen claims for

asylum and claims for withholding of [removal] under an abuse of

discretion standard.”      Id.



                                         II.

     The statutory filing deadline at issue here provides that a

motion to reopen removal proceedings “shall be filed within 90

days of the date of entry of a final administrative order of

removal.”     8 U.S.C. §      1229a(c)(7)(C)(i) (2006).        Every circuit

to   have   addressed   the      issue    has   held   that   this   provision

constitutes a statute of limitations to which the principles of

equitable tolling apply.         See Avila-Santoyo v. U.S. Att’y Gen.,

713 F.3d 1357, 1363-64 (11th Cir. 2013)(per curiam); Hernandez-

Moran v. Gonzales, 408 F.3d 496, 499-500 (8th Cir. 2005); Borges

v. Gonzales, 402 F.3d 398, 406 (3d Cir. 2005); Harchenko v. INS,

379 F.3d 405, 410 (6th Cir. 2004); Riley v. INS, 310 F.3d 1253,

1258 (10th Cir. 2002); Socop-Gonzalez v. INS, 272 F.3d 1176,

1193 (9th Cir. 2001) (en banc); Iavorski v. U.S. INS, 232 F.3d

124, 130 (2d Cir. 2000).         Although this court has not previously

addressed the issue, we agree with our sister circuits and now

hold that § 1229a(c)(7)(C)(i) sets forth a limitations period

that can be equitably tolled.



                                          5
       The     Government          and    Kuusk       also     agree    that     the     statute

contains a limitations period that can be equitably tolled; they

disagree, however, as to what standard must be met to establish

a basis for equitable tolling.                        Kuusk argues that the BIA erred

in applying the standard we set forth in Harris, 209 F.3d at

330.        The Government contends that the BIA acted within its

discretion in applying the Harris standard.

       In Harris, we addressed equitable tolling in the context of

a petition for a writ of habeas corpus.                                 We held equitable

tolling        to     be     proper      only     when       (1) “the     plaintiffs       were

prevented from asserting their claims by some kind of wrongful

conduct on the part of the defendant”; or (2) “extraordinary

circumstances beyond plaintiffs’ control made it impossible to

file     the        claims    on    time.”            Id.     (internal    quotation       mark

omitted).            We    recognized      that       “any    invocation       of   equity    to

relieve the strict application of a statute of limitations must

be guarded and infrequent, lest circumstances of individualized

hardship supplant the rules of clearly drafted statutes.”                                    Id.

To apply the doctrine generously “would loose the rule of law to

whims    about        the    adequacy      of   excuses,           divergent   responses     to

claims         of      hardship,         and      subjective           notions      of      fair

accommodation.”             Id.

       We    concluded        in    Harris      that        this    rigorous   standard      was

necessary to ensure that “any resort to equity . . . be reserved

                                                  6
for those rare instances where -- due to circumstances external

to the party’s own conduct -- it would be unconscionable to

enforce    the    limitation       period          against    the       party    and    gross

injustice would result.”              Id.     Subsequently, we have applied the

Harris standard in other contexts.                    See Gayle v. United Parcel

Serv., Inc., 401 F.3d 222, 227 (4th Cir. 2005)(ERISA); Chao v.

Va. Dep’t of Transp., 291 F.3d 276, 283 (4th Cir. 2002) (FLSA).

     Kuusk argues, however, that the BIA should not have applied

the Harris standard in the context of motions to reopen removal

proceedings,      but    instead      should        have   adopted        a   more     lenient

equitable tolling standard.                 She relies on the equitable tolling

standards       articulated      by    other        circuits      in     cases     involving

untimely motions to reopen removal proceedings.

     To    be    sure,     the   precise           wording    used       to     address   the

appropriateness of equitable tolling in these cases differs from

that in Harris.          See, e.g., Socop-Gonzalez, 272 F.3d at 1193

(applying equitable tolling when, “despite all due diligence,

[the party invoking equitable tolling] is unable to obtain vital

information bearing on the existence of the claim . . . [due to]

circumstances beyond the party’s control” (first alteration in

original));      Hernandez-Moran,            408    F.3d     at    499-500       (“Equitable

tolling    is    granted    sparingly.         Extraordinary            circumstances     far

beyond     the    litigant’s       control          must     have       prevented      timely

filing.”    (alteration       omitted));            Borges,       402    F.3d     at    406-07

                                              7
(explaining that petitioner must show both that he exercised due

diligence      and    that      extraordinary             circumstances,            like   fraud,

prevented him from timely asserting his claim).

      But in none of the cases on which Kuusk relies, or in any

other, has a sister circuit fashioned a special, more lenient

equitable tolling standard for immigration proceedings.                                    Rather,

each of our sister circuits applies, in immigration cases, its

general   standard        for     equitable          tolling.           Most        importantly,

although differently worded, each of those standards, like that

in   Harris,    adheres      to     the    general          principle         that     equitable

tolling   will       be   granted       “only       sparingly,”         not    in     “a   garden

variety claim of excusable neglect.”                       Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 96 (1990).

      Kuusk    has    provided       us   with       no     rationale         to    support   her

argument that we should fashion a special standard to apply in

immigration cases, and we see no reason to do so.                                  Thus, we hold

that the Harris standard applies to untimely motions to reopen

removal   proceedings.            The     BIA       did    not    err    in    applying       that

standard in this case.



                                           III.

      Alternatively,         Kuusk      maintains          that    the    BIA        incorrectly

applied the Harris standard to the facts of this case.                                        This

argument also fails.

                                                8
      Kuusk contends that the assertedly erroneous instructions

she received from the USCIS officer prevented her from filing a

timely motion to reopen her immigration case.                              She relies on

Socop-Gonzalez,          in    which    the       Ninth        Circuit    held    equitable

tolling   to       be   warranted      when    an    INS       officer     gave   erroneous

advice to a petitioner seeking a marriage-based adjustment of

status. 272 F.3d at 1193-96.              In that case, after the petitioner

married   a    United         States   citizen      during       the     pendency   of     his

asylum appeal, he asked an INS officer for advice on obtaining a

marriage-based adjustment of status.                      Id. at 1181.        The officer

instructed him to “withdraw his asylum appeal and to file an

application for adjustment of status with the INS.”                               Id.     When

the petitioner followed the officer’s advice, the withdrawal of

his asylum appeal immediately finalized his deportation order.

Id.

      The Ninth Circuit pointed out that the advice of the INS

officer      was     incorrect:         “Instead          of    instructing       Socop    to

withdraw his asylum petition, the INS officer should have told

Socop to file a[] [green card] petition with the INS and wait

until   it     was      approved.”       Id.        Because        Socop    followed       the

officer’s incorrect instructions, he “unwittingly triggered his

own immediate deportation.”              Id. at 1182.             For this reason, the

court concluded that, due to the INS officer’s erroneous and

prejudicial advice, Socop was prevented “by circumstances beyond

                                              9
his     control       and         going   beyond        ‘excusable       neglect[]’      from

discovering       .       .   .   vital    information        he    needed    in     order    to

determine    that         a    motion     to    reopen    was      required    in    order    to

preserve his status.”               Id. at 1194.

      Socop-Gonzalez fundamentally differs from the case at hand.

Here,      the        USCIS         officer       did     not       provide         “incorrect

instructions.”            Rather, according to Kuusk’s own testimony, the

officer informed her that she should apply for a marriage-based

green card “directly with the USCIS based on [her] marriage to a

U.S. citizen . . . even though [her] case was currently on an

asylum appeal from the immigration court.”                              AR 24.       This was

correct:     Kuusk did in fact need to apply “directly with the

USCIS”     for        a       marriage-based          green     card.         This     correct

instruction, however, did not excuse Kuusk from also pursuing

the other necessary course:                     a motion to reopen her proceedings

before the BIA.               Unlike the INS officer in Socop-Gonzalez, the

USCIS    officer          here     did    not    instruct       Kuusk    to    abandon       her

application for asylum or to forego filing a motion to reopen

her case before the immigration court.                        Moreover, in response to

Kuusk’s statement that she intended to file for a marriage-based

green card directly with the USCIS based on her marriage to a

United States citizen, Kuusk’s immigration attorney warned her

that she needed to “file a motion to reopen [her] case before

the BIA[.]”           Both before and after the BIA denied her appeal,

                                                 10
Kuusk’s attorney cautioned her as to the necessity and immediacy

of filing this motion.

      Kuusk    simply       misunderstood      the      accurate,        but    limited,

advice given by a USCIS officer and then ignored two warnings

from her attorney that she needed to file a motion to reopen her

immigration        case   within    the    statutory        time    limit.           Such

misunderstandings,          however       innocent,        do      not         constitute

“extraordinary       circumstances”       beyond     the    petitioner’s         control

sufficient to warrant equitable tolling.                    Harris, 209 F.3d at

330; see also Gayle, 401 F.3d at 227 (“The law has always, and

necessarily, held people responsible for innocent mistakes.”).

We therefore hold that the BIA did not abuse its discretion in

determining that equitable tolling was not warranted here.

      This result is unfortunate because it appears that a timely

motion to reopen Kuusk’s case would in all likelihood have led

to an adjustment of her immigration status, thereby enabling her

to remain legally in this country with her husband.                              At oral

argument,     we    asked    the   Government      to    identify    any        steps    an

individual in Kuusk’s position might take to obtain relief from

the Government in order to avoid prolonged separation from her

family.      The Government indicated that Kuusk, through counsel,

could (1) ask the Department of Homeland Security to join her in

a   motion    to   reopen    her   case;    (2)    ask     the   Government        for    a

favorable     exercise       of    prosecutorial         discretion,       which,        if

                                          11
granted, would administratively close her case; or (3) ask the

Government to grant equitable relief in the form of deferred

action, in which case Kuusk would ask the Department not to

pursue removal.          Oral Argument at 33:30-35:00, Kuusk v. Holder,

12-2367, September 17, 2013.               Thus, although we cannot afford

Kuusk    equitable       relief,    the   “broad       discretion      exercised    by

immigration officials,” which remains “[a] principal feature of

the removal system,” Arizona v. United States, 132 S. Ct. 2492,

2499 (2012), might still be marshaled to provide Kuusk relief.



                                          IV.

        In sum, we hold that when a petitioner fails to meet the

statutory deadline to file a motion to reopen her immigration

case,    equitable       tolling    is    appropriate        only    when   (1)    the

Government’s       wrongful    conduct     prevented         the    petitioner    from

filing    a     timely    motion;    or   (2)    extraordinary         circumstances

beyond    the    petitioner’s       control     made    it    impossible    to     file

within the statutory deadline.              Because Kuusk failed to satisfy

either of these criteria, her petition for review is

                                                                             DENIED.




                                          12
