BIA Holds That It Has Authority To Accept What Are Otherwise Untimely Appeals, And Consider Them Timely, In Certain Situations Because 8 C.F.R. § 1003.35(b) Is A Claim-Processing Rule And Not A Jurisdictional Provision. Matter Of Liadov, 23 I&N Dec. 990 (BIA 2006), Overruled. The BIA Will Accept A Late-Filed Appeal Where A Party Can Establish That Equitable Tolling Applies, Which Requires The Party To Show Both Diligence In The Filing Of The Notice Of Appeal And That An Extraordinary Circumstance Prevented Timely Filing.
On May 5, 2023, the Board of Immigration Appeals (BIA or Board) denied a motion to reconsider its prior dismissal of Respondents’ appeal as untimely. Previously, an Immigration Judge (IJ) had denied all applications for relief and Respondents had appealed. The BIA summarily dismissed the appeal as untimely, a decision Respondents requested be reconsidered. They claimed their appeal was not timely filed because counsel had inadvertently mailed the notice of appeal via USPS regular mail as opposed to express mail. The appeal was mailed 2 days before the due date and not received in time. The regulations [8 C.F.R. § 1003.35(b)] give 30 calendar days to file a notice of appeal (Form EOIR-26) directly with the Board unless the due date falls on a weekend day or legal holiday; then, the deadline is extended to the next business day.
In Matter Of Liadov, 23 I&N Dec. 990 (BIA 2006), the Board had parsed the 30-day regulatory appeal deadline, observing that the regulations, INA and Supreme Court precedent “all require that filing deadlines be strictly enforced and thus that appeals be timely filed. Neither the statute not the regulations grant us the authority to extend the time for filing appeals.” Additionally, Liadov noted that the BIA itself and other executive branch officials could “certify” to the Board any case within its appellate jurisdiction and this provision could be invoked when a case presents “exceptional circumstances”; “short delays by overnight delivery services” however, were not considered exceptional circumstances by Liadov sufficient to warrant invocation of this certification authority. The case was therefore “fairly read” to require strict compliance without exception, with certification a “safety valve” in exceptional circumstances.
The opinion next stated that several courts of appeal have disagreed with Liadov’s holding, primarily because it construes the regulation “as a strict deadline for filing a notice of appeal such that the Board has no statutory or regulatory license to extend” the filing deadline. Further, the Supreme Court has found that determining whether a filing deadline is jurisdictional or a claim-processing rule is a “complex issue.” Accordingly, held the BIA, it is now time for a “course correction” from its reasoning in Liadov and the instant case presents an opportunity to do so.
Initially, explained the decision, while the regulatory deadline for filing a notice of appeal is essential for achieving finality in the ongoing, if harsh and arbitrary, appellate process, it is not the same as, say, the statutory time limit for filing a petition for review with a court of appeal, which is “mandatory and jurisdictional”. The Board thus concluded that while it still will dismiss appeals filed outside of the 30-day time limit, it had to acknowledge the institutional authority to “accept what are otherwise untimely appeals, and consider them timely, in certain situations” because the regulation is a claim-processing rule, not a jurisdictional provision. As such, Liadov was overturned.
As a claims-processing rule, 8 C.F.R. § 1003.35(b) applies strictly but with an important exception: equitable tolling. Accordingly, announced the BIA, it will accept late-filed appeals if a party can establish that equitable tolling applies. This requires 2 things: 1) the party must prove he has been pursuing his rights diligently and 2) some extraordinary circumstances prevented timely filing.
Here, Respondents admitted that 5 days before the appeal was due, they retained the same law firm that had represented them before the IJ, yet offered no explanation as to what steps they had taken during the first 25 days of the appeals period. They therefore failed to persuade the BIA that they had acted diligently. Nor had they shown that an extraordinary circumstance had prevented a timely filing; counsel stated that the appeal notice was inadvertently mailed via regular, not overnight, delivery. An extraordinary circumstance, found the opinion, includes “those situations where reasonable expectations about an event’s occurrence are interrupted,” such as using a guaranteed delivery service which fails to fulfill its guarantee. The inadvertent act of choosing regular mail as opposed to overnight delivery “is not an extraordinary circumstance.” Because Respondents did not prove that they pursued their appeal rights diligently and that an extraordinary circumstance prevented a timely filing, equitable tolling did not apply and the motion to reconsider was denied. Matter of Morales-Morales 28 I&N Dec. 714 (BIA 2023).