The Second Circuit has determined that the 30-day appeal deadline for filing a Notice of Appeal with the Board of Immigration Appeals (BIA) is a claim processing rule, not a jurisdictional bar, and as such, it is subject to equitable tolling. The court emphasized that equitable tolling is available, even without the BIA exercising its discretionary certification authority.
“ The BIA is free to develop the factors it will apply in considering equitable tolling, although we note that it need not start from scratch. In Holland, the Supreme Court set out standards for courts to apply in determining whether equitable tolling is appropriate: (1) a showing that a petitioner “has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” 560 7 U.S. at 649 (internal quotation marks omitted). And in the context of a late motion to reopen, we have held that petitioners seeking equitable tolling must demonstrate (1) that their constitutional rights to due process were violated by the conduct of counsel; and (2) that they exercised due diligence during the putative tolling period.”
The full text of Attipoe v. Barr can be found here:
http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/7/doc/18-204_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/7/hilite/