53 F.4th 173
4th Cir.2022Background
- Petitioners Ana Gloria Santos‑de Jimenez and her minor daughter, Guatemalan nationals, sought review of the BIA’s final order affirming the IJ and denying Santos asylum and withholding of removal.
- The BIA’s final order was entered (date‑stamped) March 29, 2021; under 8 U.S.C. § 1252(b)(1) the 30‑day filing deadline ran to April 28, 2021.
- Petitioners filed their petition for review on April 29, 2021—one day after the statutory deadline.
- Petitioners argued FRAP 26(c) adds three days when a paper is served by mail, so their filing was timely; the government argued the statute measures time from the date of the final order, not service.
- The Fourth Circuit held Rule 26(c) does not enlarge the § 1252(b)(1) filing period because the statute runs from the date of the final order of removal, and dismissed the untimely petition for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FRAP 26(c) (three‑day mailbox rule) extends the 30‑day § 1252(b)(1) filing period when the BIA mails its decision | Santos: Rule 26(c) applies when a party must act after being served, so mailing triggers the three‑day extension | AG: § 1252(b)(1) measures time from the date of the final order of removal, not service; Rule 26(c) cannot override the statute | Rule 26(c) does not apply; the statutory deadline runs from the date of the final order, petition one day late, court lacks jurisdiction |
Key Cases Cited
- Stone v. INS, 514 U.S. 386 (holding the § 1252(b)(1) filing period is mandatory and jurisdictional)
- Ramos‑Lopez v. Lynch, 823 F.3d 1024 (holding Rule 26(c) does not extend § 1252(b)(1) because statute does not refer to service)
- Nahatchevska v. Ashcroft, 317 F.3d 1226 (same conclusion)
- Haroutunian v. INS, 87 F.3d 374 (same conclusion under prior statute)
- Zaluski v. INS, 37 F.3d 72 (earlier case treating mailing as trigger under a prior statutory formulation)
- Ouedraogo v. INS, 864 F.2d 376 (same rule under predecessor statute)
- Martinez‑Serrano v. INS, 94 F.3d 1256 (adopting mailing‑as‑issuance approach under prior statute)
- Lin v. U.S. Att’y Gen., 677 F.3d 1043 (dismissing petition filed days late, calculating from BIA’s entry date)
- Sankarapillai v. Ashcroft, 330 F.3d 1004 (same)
- Malvoisin v. INS, 268 F.3d 74 (same)
- Nowak v. INS, 94 F.3d 390 (criticizing mailing‑as‑issuance rule)
- Coyt v. Holder, 593 F.3d 902 (noting Board treats a motion to reissue as a motion to reopen)