United States Court of Appeals
For the First Circuit
No. 20-1666
ANDREA JOY JAMES,
Petitioner,
v.
MERRICK B. GARLAND,* Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Kayatta and Barron, Circuit Judges,
and Saris,… District Judge.
Trina Realmuto, with whom Kristin Macleod-Ball, Tiffany Lieu,
National Immigration Litigation Alliance, and Kira Gagarin were on
brief, for petitioner.
Jeffrey R. Meyer, Attorney, Office of Immigration Litigation,
with whom Brian Boynton, Acting Assistant Attorney General, Civil
Division, and Stephen J. Flynn, Assistant Director, Office of
Immigration Litigation, were on brief, for respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Attorney General
William P. Barr.
… Of the District of Massachusetts, sitting by designation.
October 25, 2021
KAYATTA, Circuit Judge. After an immigration judge (IJ)
ordered petitioner Andrea Joy James removed from the United States,
the Board of Immigration Appeals (BIA) dismissed James's appeal as
untimely. In so doing, the BIA failed to address James's request
to apply equitable tolling in assessing whether her appeal was
timely. For that reason, we vacate the BIA's dismissal of James's
appeal and remand for the BIA to assess in the first instance
whether the thirty-day time limit for appealing the IJ's order
should have been equitably tolled so as to render James's appeal
timely. Our reasoning follows.
I.
James, a native and citizen of Jamaica, left that country
in 1989 and entered the United States at an unknown place. She
has lived in the United States since that time and has a U.S.-
citizen daughter who also lives here. In December 1999, James was
sentenced to over twenty-seven years of imprisonment after she was
convicted of various drug offenses. In October 2019, following
the completion of her criminal sentence, James was detained by
U.S. Immigration and Customs Enforcement (ICE) in the Bristol
County House of Correction (BCHOC) and placed in removal
proceedings. The government charged James with being subject to
removal based on her presence in the United States without having
been admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i), and her
controlled substance convictions, see
id. §§ 1182(a)(2)(A)(i)(II),
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(a)(2)(C). After those charges were sustained by the IJ, James
applied for asylum, withholding of removal, and protection under
the United Nations Convention Against Torture (CAT) based on her
fear of returning to Jamaica. At a hearing on February 19, 2020,
at which James appeared pro se, the IJ denied James's requests for
relief and ordered her removed to Jamaica. By regulation, any
appeal was due "within 30 calendar days after" the IJ's decision.
8 C.F.R. § 1003.38(b). The written memorandum of the IJ's removal
order, which was personally served on James the day of the hearing,
listed an incorrect appeal deadline of March 18, 2020 (the correct
deadline was March 20, 2020).1
By the time of James's removal hearing, the World Health
Organization and the United States had declared COVID-19 a public
health emergency. See Novel Coronavirus(2019-nCoV) Situation
Report - 11, World Health Org. (Jan. 31, 2020),
1 This is not the only oddity with the written memorandum,
which (as is typical) was simply a form indicating whether relief
was granted, rather than an explanation of the IJ's reasoning for
denying relief. See Centro Legal de la Raza v. Exec. Off. for
Immigr. Rev., No. 21-cv-00463-SI, 2021 WL 916804, at *3 n.2 (N.D.
Cal. Mar. 10, 2021). The memorandum was not signed by the IJ, and
though it listed an appeal deadline, boxes checked on the order
appear to indicate that James waived her right to appeal. The
government, however, does not argue that James's appeal was waived,
nor did the BIA's dismissal of the appeal as untimely acknowledge
the issue of waiver, let alone suggest that the appeal had been
waived. Because our review is limited to the grounds the BIA
offered for its decision, we make no determination either way
concerning this issue. See SEC v. Chenery Corp.,
318 U.S. 80, 94
(1943).
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https://www.who.int/docs/default-source/coronaviruse/situation-
reports/20200131-sitrep-11-ncov.pdf?sfvrsn=de7c0f7_4; U.S. Dep't
of Health & Hum. Servs., Determination that a Public Health
Emergency Exists (Jan. 31, 2020),
https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-
nCoV.aspx. On March 10, 2020, just ten days before James's appeal
deadline, the governor of Massachusetts declared a state of
emergency due to COVID-19. Press Release, Charlie Baker, Governor,
Commonwealth of Mass., Governor Baker Declares State of Emergency
to Support Commonwealth's Response to Coronavirus, (Mar. 10,
2020), https://www.mass.gov/news/governor-baker-declares-state-
of-emergency-to-support-commonwealths-response-to-coronavirus.
Within days, the World Health Organization declared COVID-19 a
pandemic, and the United States declared COVID-19 a national
emergency. See WHO Director-General's opening remarks at the media
briefing on COVID-19, World Health Org. (Mar. 11, 2020),
https://www.who.int/director-general/speeches/detail/who-
director-general-s-opening-remarks-at-the-media-briefing-on-
covid-19---11-march-2020; Proclamation No. 9994, 85 Fed. Reg.
15,337 (Mar. 13, 2020).
"[C]orrectional institutions face[d] unique
difficulties in keeping their populations safe during this
pandemic," and BCHOC, where James remained in detention, was no
exception. Savino v. Souza (Savino I), 453 F. Supp. 3d 441, 445
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(D. Mass. 2020) (quoting Comm. for Pub. Counsel Servs. v. Chief
Just. of the Trial Ct., 142 N.E.3d 525, 531 (Mass. 2020)); Savino
v. Souza (Savino II),
459 F. Supp. 3d 317, 331 (D. Mass. 2020)
(finding "acute flaws in the government's prevention strategy" at
BCHOC, including a "lack of testing and contract tracing").
In the midst of this newly-announced health emergency
affecting her place of detention, James missed the March 20, 2020
deadline to appeal the IJ's removal order to the BIA. On April 1,
2020, James -- still proceeding pro se -- signed and deposited in
the prison mail system a Notice of Appeal from a Decision of an
Immigration Judge (Form EOIR-26). She included with the notice a
Supplement to Notice of Appeal and a motion to accept the untimely
appeal, plus a fee waiver request. James designated two issues on
appeal, one related to the denial of CAT relief, the other to the
denial of withholding of removal. The BIA received the appeal
package on April 6, 2020, seventeen days after it was due. The
next day, James was ordered released from BCHOC as part of a class
action lawsuit seeking the release of noncitizens detained at BCHOC
due to the health risks posed by COVID-19. Electronic Order,
Savino v. Hodgson, No. 20-cv-10617-WGY (D. Mass. Apr. 7, 2020),
ECF No. 55.
In her motion to accept the untimely appeal, James
explained that she was "not able to secure counsel . . . within[]
30 days" and that she was "currently detained and suffering from
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serious complication[s] from her diabetes and high blood
pressure." The "supplement" included with James's notice of appeal
argued that "because the 30-day appeal period set forth in 8 C.F.R.
§ 1003.38(b) is a claim-processing rule, the BIA must conduct
individualized, administrative review to determine whether it will
accept the late appeal." The supplement further argued that
"[b]ecause Respondent has requested equitable tolling of the
appeal deadline, the appeal must be stayed, at a minimum, until
[the] Board determines whether the filing deadline . . . must be
tolled." In addition, James checked a box on her notice of appeal
indicating that she intended to file a separate written brief after
filing the appeal. The notice of appeal informed James that if
she checked that box, she would be "expected to file a written
brief or statement after . . . receiv[ing] a briefing schedule
from the Board."
On June 19, 2020, the BIA summarily dismissed James's
appeal as untimely. See 8 C.F.R. § 1003.1(d)(2)(i)(G) (providing
that the BIA "may summarily dismiss any appeal" in which the
"appeal is untimely"). In doing so, the BIA construed James's
motion to accept her untimely appeal as a request to "accept the
untimely appeal by certification." See Matter of Liadov,
23 I. &
N. Dec. 990, 993 (B.I.A. 2006) (explaining that even if an appeal
is untimely, "[w]here a case presents exceptional circumstances,
the Board may certify a case to itself under 8 C.F.R.
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§ 1003.1(c)").2 After noting the reasons James provided for her
late filing -- including her detention, inability to retain legal
counsel, and serious health complications -- the BIA concluded
"[t]hese are not sufficient reasons to excuse the untimely filing
of a notice of appeal, and so we decline to consider this appeal
by certification."
The BIA's order made no reference to James's request for
equitable tolling of the appeal deadline. Because the appeal was
summarily dismissed, James had no opportunity to brief her appeal
as she requested, and no transcript of the IJ's oral decision was
produced. See 8 C.F.R. § 1003.3(c)(1) (providing that in "cases
that are transcribed, the briefing schedule shall be set by the
[BIA] after the transcript is available" and that "[i]n all cases,
the parties shall be provided 21 days in which to file simultaneous
briefs unless a shorter period is specified by the [BIA]").
In this timely petition for review by this court, James
requests that we vacate the BIA's order of dismissal and remand
2 Recently, the Department of Justice amended
section 1003.1(c) to eliminate the BIA's authority to self-certify
untimely appeals. See Appellate Procedures and Decisional
Finality in Immigration Proceedings; Administrative Closure, 85
Fed. Reg. 81,588, 81,591 (Dec. 16, 2020) (to be codified at
8
C.F.R. §§ 1003, 1240). Implementation of that amendment, however,
is currently enjoined. See Centro Legal de la Raza,
2021 WL
916804, at *1, *44.
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for the BIA to consider her equitable tolling claim. The
government opposes James's arguments and contends that we lack
jurisdiction over this petition for review.3
II.
We begin with the government's argument that we lack
jurisdiction to decide James's petition. It is undisputed that
James's appeal to the BIA was filed more than thirty days after
the IJ's decision. According to the government, this means "James
has not exhausted her administrative remedies," depriving this
court of "jurisdiction to consider her claims related to th[e]
final order of removal." See, e.g., Poole v. Mukasey, 522 F.3d
259, 264 (2d Cir. 2008) (joining other circuits to hold "that a
late appeal to the BIA leaves a petitioner's claim unexhausted,
and that a court then lacks jurisdiction to consider the
unexhausted claims"). On the record here, this argument simply
begs the question whether the appeal was untimely, which it was
not if the deadline should have been equitably tolled. See
id. at
263–64 (considering petitioner's "objections to the BIA's
untimeliness ruling"); Liadov v. Mukasey,
518 F.3d 1003, 1006–07
(8th Cir. 2008) (holding "that an alien whose appeal to the BIA
3 James claims in the alternative that the BIA erred by
deviating from what she describes as the BIA's "settled course" of
self-certifying late appeals in similar and less compelling
circumstances. Because we agree with James's primary ground for
remand, we do not reach this alternative claim.
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was dismissed as untimely is precluded from judicial review of the
merits of the removal order" but that "a reviewing court
necessarily has jurisdiction to review the agency's jurisdictional
ruling"); Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir. 2003)
(noting that the court lacked "jurisdiction to review the
immigration judge's decision" on the merits due to the petitioner's
untimely appeal, but considering the petitioner's claim that
"'extraordinary and unique circumstances'" excused his late
filing).
In short, whatever may be said of our jurisdiction to
review the merits of James's underlying claims for relief from
removal, we have jurisdiction to consider her arguments that the
BIA erred by failing to consider her request for equitable tolling
in deciding whether the appeal to the BIA was timely. See Attipoe
v. Barr, 945 F.3d 76, 80 (2d Cir. 2019).
III.
The government also contests whether James adequately
requested equitable tolling, arguing she raised it "indirectly and
vaguely . . . in a single sentence in a pre-printed 'Supplement'"
in which she sought "an automatic stay of removal during the
pendency of her administrative appeal." It is true that James
raised her equitable tolling request in a supplement filed with
her notice of appeal, but the government offers no reason why a
request for equitable tolling included in a supplement filed
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together with a notice of appeal does not preserve any right James
might have had to benefit from equitable tolling. Nor can we agree
that James was indirect or vague. To the contrary, she was crystal
clear: James argued that "because the 30-day appeal period set
forth in 8 C.F.R. § 1003.38(b) is a claim-processing rule, the BIA
must conduct individualized, administrative review to determine
whether it will accept the late appeal." She further argued that
"[b]ecause Respondent has requested equitable tolling of the
appeal deadline, the appeal must be stayed, at a minimum, until
[the] Board determines whether the filing deadline . . . must be
tolled."
And were there any doubt about the clarity of James's
request, her pro se status would call for reading her filing
liberally in her favor. See Dutil v. Murphy, 550 F.3d 154, 158
(1st Cir. 2008) ("[W]e hold pro se pleadings to less demanding
standards than those drafted by lawyers and endeavor, within
reasonable limits, to guard against the loss of pro se claims due
to technical defects."); see also Higgs v. Att'y Gen., 655 F.3d
333, 339 (3d Cir. 2011), as amended (Sept. 19 and Sept. 28, 2011)
(holding the BIA erred by "failing to afford [pro se petitioner]
a liberal construction of his notice of appeal"); Pagayon v.
Holder,
675 F.3d 1182, 1188 (9th Cir. 2011) (noting that the court
is "particularly careful to give claims raised by pro se
petitioners their most liberal construction"). Indeed, in
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discussing filing deadlines, the Department of Justice recently
noted that although the BIA "has not formally adopted such a rule,
by practice, it . . . construes pro se filings liberally."
Appellate Procedures and Decisional Finality in Immigration
Proceedings; Administrative Closure, 85 Fed. Reg. 81,588, 81,597
n.23 (Dec. 16, 2020) (to be codified at
8 C.F.R. §§ 1003, 1240).
In sum, James's filing is reasonably read as a request
for equitable tolling of the deadline to file her appeal.
IV.
A.
We would normally turn next to the follow-up question of
whether section 1003.38(b) is subject to equitable tolling. But
the government has not contested James's argument that equitable
tolling can be employed to extend the thirty-day deadline for
appealing an IJ's decision. The government does not contend, for
example, that it has no jurisdiction to apply equitable tolling
once thirty days have passed. Cf. United States v. Wong, 575 U.S.
402, 408–09 (2015) (holding that where "Congress made the time bar
at issue jurisdictional," a "litigant's failure to comply with the
bar deprives a court of all authority to hear a case"). While
that issue is not before us here, we note that four of our sister
circuits have held that the thirty-day deadline is not
jurisdictional. See Attipoe v. Barr,
945 F.3d 76, 80–82 (2d Cir.
2019); Irigoyen-Briones v. Holder,
644 F.3d 943, 947–49 (9th Cir.
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2011); Liadov v. Mukasey, 518 F.3d 1003, 1008 n.4 (8th Cir. 2008);
Huerta v. Gonzales,
443 F.3d 753, 755–57 (10th Cir. 2006). We are
aware of no circuit holding to the contrary.
The government's lack of opposition on the question of
equitable tolling comports with several of its recent remarks on
the issue. See, e.g., In re: Sandra Lorena Hernandez-Ortez Abner
Fabricio Mayen-Hernandez, 2018 WL 1897753, at *2 (B.I.A. Feb. 12,
2018) ("equitable tolling applies to the filing deadline for [a
noncitizen's] appeal"); see also Appellate Procedures and
Decisional Finality in Immigration Proceedings, 85 Fed. Reg. at
81,591 ("[N]othing in [this] rule precludes the ability of a
respondent to argue, in an appropriate case, that a time limit is
inapplicable due to equitable tolling.").
Instead, the government argues that the BIA did address
the merits of James's request for equitable tolling, and that its
rejection of the request rested on no "material error of law
or . . . manifestly arbitrary exercise of judgment." Gyamfi v.
Whitaker, 913 F.3d 168, 174 (1st Cir. 2019) (quoting Meng Hua Wan
v. Holder,
776 F.3d 52, 56 (1st Cir. 2015)). We address each part
of this argument in turn.
B.
The government's primary argument is that the BIA
adequately considered James's request for equitable tolling by
construing it as a request for the BIA to accept the appeal by
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certification. In making this argument, the government relies on
Daoud v. Barr, 948 F.3d 76 (1st Cir. 2020). But Daoud did not
involve self-certification; to the contrary, in Daoud, "the BIA
did consider, and reject, the application of equitable tolling."
Id. at 83.
Moreover, self-certification and equitable tolling are
not quite the same. Cf. Bolieiro v. Holder, 731 F.3d 32, 39 (1st
Cir. 2013) (distinguishing equitable tolling from agency's "sua
sponte authority to reopen proceedings"). Self-certification is
a purely discretionary determination. See Matter of Liadov,
23 I.
& N. Dec. at 993;
8 C.F.R. § 1003.1(c)(2020) (providing that the
BIA "may in any case . . . certify such case to the [BIA]"
(emphasis added)). Under the equitable tolling standard, however,
a petitioner is "'entitled to equitable tolling' . . . if he shows
'(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way.'" Holland v.
Florida,
560 U.S. 631, 649 (2010) (emphasis added) (quoting Pace
v. DiGuglielmo,
544 U.S. 408, 418 (2005)). Unsurprisingly, then,
self-certification and equitable tolling also differ procedurally.
The BIA's sua sponte indulgence is generally "unfettered" absent
circumstances not present here. Luis v. INS,
196 F.3d 36, 40 (1st
Cir. 1998); Thompson v. Barr,
959 F.3d 476, 480–83 (1st Cir. 2020);
see also Abdulla v. Att'y Gen.,
971 F.3d 409, 413–14 (3d Cir.
2020). In contrast, we have reviewed denials of equitable tolling
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for abuse of discretion. See, e.g., Vázquez-Rivera v. Figueroa,
759 F.3d 44, 49–51 (1st Cir. 2014); Tay-Chan v. Barr, 918 F.3d at
213 (reviewing for abuse of discretion BIA's denial of motion to
reopen where BIA declined to equitably toll filing deadline).
For all of these reasons, we do not read the BIA's
refusal to self-certify James's appeal as implicitly rejecting
James's request for equitable tolling.
C.
Finally, the government argues that James has not
sufficiently made the case for equitable tolling. But since the
BIA did not consider James's tolling argument, we opt not to try
to predict how the BIA would have ruled had it considered the
argument. See Bolieiro, 731 F.3d at 38 ("Under well-settled
principles of administrative law, we must accept or reject the
agency's decision based on the rationale the agency provides.").
We note as well that, although the government contended at oral
argument that James failed to expressly mention "COVID" in her
motion to accept her untimely appeal, the government ultimately
conceded that the BIA must have been aware of the coronavirus
pandemic. The BIA should have the first say in determining whether
a pro se detainee whose filing deadline fell during the frenzied
first month of the COVID-19 outbreak and who raised her "serious
complication[s] from her diabetes and high blood pressure" is
entitled to equitable tolling. For us to take the first pass would
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be particularly inappropriate here, given that James specifically
indicated that she sought to file a written brief fleshing out her
arguments, and yet was denied that opportunity when the BIA
summarily dismissed her appeal.
V.
For the foregoing reasons, we vacate the BIA's order of
dismissal and remand to the BIA for it to determine in the first
instance whether James's case presents circumstances warranting
equitable tolling of section 1003.38(b)'s filing deadline.
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