In federal habeas corpus petition, filed outside the one-year filing period, prisoner argued that lack of English was "extraordinary circumstance," justifying equitable tolling. 10th Cir rejects 2d and 9th cir caselaw, finds language barriers do not constitute an extraordinary circumstance. Contra Mendoza v. Carey, 449 F.3d 1065, 1069 (9th Cir. 2005); Diaz v. Kelly, 515 F.3d 149 (2d Cir. 2008).
The Defendant was a Cancellation applicant, with an EAD and a Social Security number - he had firearms in his house. Court said that the fact that his status was tolerated and that employment was authorized did not eliminate his status as one illegally present; distinguished those granted TPS, as there is a clear difference between being granted TPS and apply for LPR status.
Falaniko v. Mukasey (10th Cir. 4/9/08) (unpublished)
PER CURIAM Briscoe, Baldock, Lucero
The 10th Cir issued a 14 page unpublished decision, analyzing 212(c), and rejecting the 2d Cir's approach in Blake v. Carbone, 489 F.3d 88, 94 (2nd Cir. 2007). The 10th Cir agreed with the majority of circuits that the EqPro analysis must focus on the ground of removability / inadmissibility, and not simply the criminal offense.
The 10th Cir held that utter intoxication / blackout was no defense to the charge of illegal reentry; and that it could not even be introduced as evidence, because it didn't make it more likely that someone else transported him to the US, rather than him coming here himself.
The 10th Cir upheld the IJ finding that offense was child abuse, finding earlier proceedings were not res judicata, deferring to the Board's definition of child abuse, and finding that state court minute orders clarified typographic error as to section of offense.
Tenth Circuit 
