30-Day Filing Rule Relating to BIA Appeals is Subject to Equitable Tolling
The procedural history, facts of record, holding and rationale in Jose Santos Boch-Saban v. Garland (April 8, 2022) No. 20-60540 are as follows:
Case History
An Immigration Judge ordered the Petitioner removed in his absence when he failed to appear for his removal hearing.
In January 2017, the Petitioner and the Department of Homeland Security (“DHS”) filed a joint motion to reopen.
On March 21, 2017, the Immigration Judge denied the joint motion to reopen.
The Petitioner did not appeal the denial of the joint motion to reopen.
In May 2017, the Petitioner filed a second unopposed motion to reopen.
The Immigration Judge denied the second motion to reopen on July 17, 2017.
Notice of the denial of the second motion to reopen was mailed to the Petitioner’s counsel on July 25, 2017.
On May 21, 2018, the Petitioner filed a notice of appeal with the Board of Immigration Appeals (“BIA”), in which he sought review of the March 2017 denial of his first motion to reopen. Along with the notice of appeal, the Petitioner filed a motion asking the BIA to accept his untimely appeal.
The BIA dismissed the appeal as untimely and denied the Petitioner’s request to accept the appeal notwithstanding its untimeliness.
The Petitioner filed a petition for review of the BIA’s dismissal of his appeal.
Facts
The Petitioner is a native and citizen of Guatemala who was charged in a notice to appear served on November 4, 2005 with being removable as an alien present in the United States without having been lawfully admitted or paroled. See section 212(a)(6)(A) of the Immigration and Nationality Act, as amended.
In 2013, the Petitioner married a U.S. citizen who subsequently petitioned the DHS for a visa on his behalf as the spouse of a United States citizen, which was approved on October 24, 2016.
Since the Petitioner did not appeal the denial of the joint motion to reopen, the Immigration Judge denied his second unopposed motion to reopen as time and number barred. See 8 C.F.R. § 1003.23(b)(1) (imposing a limit of one motion to reopen, which must be filed within ninety days of entry of final removal order). Time and number bars, however, do not apply to jointly filed motions to reopen. See 8 C.F.R. § 1003.23(b)(4)(iv).
Held
BIA’s decision vacated
Remanded
Rationale
The Petitioner contended that the BIA failed to consider his arguments for equitable tolling based on ineffective assistance of counsel. In particular, the Petitioner asserted that the thirty-day appeal filing period of § 1003.38(b) is non-jurisdictional and is therefore subject to equitable tolling, distinct from the discretionary authority of the BIA to self-certify an otherwise untimely appeal.
The Fifth Circuit Court of Appeal reasoned as follows:
- Only statutes that are specifically designated as jurisdictional are, in fact, jurisdictional. See, e.g., Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, at 21 (2017) (“‘[M]andatory and jurisdictional’ is erroneous and confounding terminology where, as here, the relevant time prescription is absent from the U.S. Code.”).
- Although the BIA held in In re Liadov, 23 I. & N. Dec. 990, at 993 (B.I.A. 2006) that the BIA has no statutory or regulatory license to extend the time for filing a notice of appeal, the Second and Ninth Circuits have held that the thirty-day BIA appeal filing rule is non-jurisdictional and subject to equitable tolling. See Attipoe v. Barr, 945 F.3d 76, at 78–80 (2d Cir. 2019) (“Liadov is at odds with precedent in this Circuit and in others, as well with the Supreme Court’s repeated admonition not to treat claim-processing rules—such as the filing deadline in 8 C.F.R. § 1003.38—as jurisdictional.”); Irigoyen-Briones v. Holder, 644 F.3d 943, at 946–48 (9th Cir. 2011).
- The Fifth Circuit Court of Appeal agreed with and adopted the reasoning of the Second and Ninth Circuit Courts of Appeal that the BIA has the jurisdiction to consider the Petitioner’s appeal if the Petitioner meets the standards for equitable tolling.
Commentary
Equitable tolling is not a free-for-all.
In Jose Santos Boch-Saban v. Garland (April 8, 2022) No. 20-60540, the Fifth Circuit Court of Appeal determined that equitable tolling might be available to justify consideration of an untimely appeal.
The Fifth Circuit Court of Appeal has previously acknowledged that in some circumstances equitable tolling may be appropriate. An alien is entitled to equitable tolling of a statute of limitations only if: (1) he has been pursuing his rights diligently and (2) some extraordinary circumstance has stood in his way and prevented timely filing. See Lugo-Resendez v. Lynch, 831 F.3d 337, at 344 (5th Cir. 2016). In my experience, many late motions to reopen lie wrecked beneath the stormy seas of litigation after shattering on the rocks of the requirement to exercise diligence.
The acknowledgement that equitable tolling of the 30-day time limit mandated in 8 C.F.R. § 1003.38(b) for filing an appeal with the BIA might be applicable at least opens the door to consideration of extraordinary circumstances accompanied by diligence on the part of a litigant in pursuit of an appeal.
Practitioners, however, should keep in mind that discretionary decisions of the BIA not to consider an appeal, even if it has jurisdiction to do so, will be reviewed by the Fifth Circuit Court of Appeal with great deference.
For example, the Fifth Circuit Court of Appeal reviews denials of motions to reopen “under a highly deferential abuse-of-discretion standard.” Fuentes-Pena v. Barr, 917 F.3d 827, at 829 (5th Cir. 2019). Specifically, a discretionary BIA decision relating to a motion to reopen will not be disturbed “so long as it is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Yu Zhao v. Gonzales, 404 F.3d 295, at 304 (5th Cir. 2005). It seems likely that even an artless or inappropriate administrative decision might survive abuse-of-discretion review.
This same “’abuse-of-discretion standard” will be applied to the review of discretionary refusals to consider untimely appeals, even though the BIA has the jurisdiction to consider them.
Perhaps, the vacation of the BIA decision and remand for consideration of equitable tolling will result in a favorable exercise of discretion for the Petitioner in Jose Santos Boch-Saban v. Garland.