Second Circuit Finds that BIA Appeal Deadline is Subject to Equitable Tolling

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/

Ninth Circuit Permits BIA to Decline to Address New Arguments on Appeal

The Ninth Circuit has determined that in certain instances, the Board of Immigration Appeals (Board) can decline to address a new argument made on appeal, such as the proffer of a new particular social group not raised before the Immigration Judge. “Waiver and forfeiture are an important part of any adjudicative system, whether judicial or administrative. These doctrines preserve the integrity of the appellate structure by ensuring that an issue must be presented to, considered and decided by the trial court before it can be raised on appeal. Particularly when the issue requires resolving disputed facts, such presentation is crucial because it allows the adjudicator with the best understanding of the case to make an initial determination, make the necessary findings, and conduct any additional proceedings necessary to reach a fair and just result. Waiver and forfeiture also encourage the orderly litigation and settlement of claims by preventing parties from withholding ‘secondary, back-up theories at the trial court level, thus allowing party-opponents to appraise frankly the claims and issues at hand and respond appropriately.” However, the court decided to “leave it to another case to decide what standard of review we should apply to the Board’s decision to invoke such default, and what showing a non-citizen must make to the immigration judge to preserve an argument for Board review.”

The full text of Honcharov v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/29/15-71554.pdf