Attipoe v. Barr, 945 F.3d 76

Background

Emeli Attipoe, a Ghanaian lawful permanent resident, was ordered removed after an IJ concluded his Connecticut attempted larceny conviction was an aggravated felony, making him ineligible for cancellation of removal.
The IJ’s written decision did not properly notify Attipoe of the appeal deadline; the cover letter omitted the appeal-deadline checkbox, and the IJ did not inform him of the deadline in the decision.
Attipoe retained an attorney who agreed to file an appeal for $500 but never filed the notice of appeal; Attipoe learned from the BIA before the deadline that no appeal was on file.
Attipoe filed pro se a notice of appeal and motions on October 21–24, 2016; the BIA received the notice on October 27, 2016, after the 30-day deadline.
The BIA dismissed the appeal as untimely, concluding Attipoe failed to show "exceptional circumstances" warranting acceptance via self-certification and that he had not satisfied Matter of Lozada for an ineffective-assistance claim.
The Second Circuit held the BIA erred by refusing to consider whether the nonjurisdictional 30-day appeal deadline is subject to equitable tolling and remanded for the BIA to develop tolling standards and apply them.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA must consider equitable tolling for the 30-day appeal deadline (8 C.F.R. §1003.38(b))	The deadline is nonjurisdictional and subject to equitable tolling given counsel’s failure and Attipoe’s diligence	Only the BIA’s self-certification process can cure late appeals; the BIA lacks authority to extend the deadline	The court held BIA must consider equitable tolling; remanded to apply tolling standards
Whether the court may review a BIA denial of certification under 8 C.F.R. §1003.1(c)	Attipoe challenged the BIA’s failure to consider tolling, not the discretionary certification decision	The refusal to certify is discretionary and unreviewable	The court lacks jurisdiction to review denial of certification but may review legal question whether tolling applies
Whether Liadov and agency deference preclude equitable tolling	Liadov improperly treated the deadline as jurisdictional and is inconsistent with Supreme Court precedent	Government relied on Liadov and argued for deference to the BIA’s regulatory interpretation	The court rejected Liadov’s jurisdictional treatment and declined to defer on this legal issue; filing deadlines are claim-processing rules
What standard governs equitable tolling of the BIA appeal deadline	Attipoe invoked Holland and immigration cases requiring diligence + extraordinary circumstances or ineffective-assistance-plus-diligence	Government urged BIA control over standards or no tolling	The court remanded; BIA to develop standards, with Holland, Iavorski and related standards offered as guidance

Key Cases Cited

Henderson v. Shinseki, 562 U.S. 428 (2011) (filing deadlines are often claim-processing rules, not jurisdictional)
Holland v. Florida, 560 U.S. 631 (2010) (equitable tolling requires diligence and an extraordinary circumstance)
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990) (statutory filing period subject to equitable tolling)
United States v. Locke, 471 U.S. 84 (1985) (filing deadlines strictly enforced but recognize equitable defenses)
United States v. Kwai Fun Wong, 575 U.S. 402 (2015) (procedural time bars are nonjurisdictional absent a clear statement)
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (clarified what constitutes jurisdictional rules)
Iavorski v. U.S. I.N.S., 232 F.3d 124 (2d Cir. 2000) (equitable tolling available for immigration motions to reopen; refused to defer to BIA refusing tolling)
Rashid v. Mukasey, 533 F.3d 127 (2d Cir. 2008) (diligence requirement when tolling is based on ineffective assistance)
Cekic v. I.N.S., 435 F.3d 167 (2d Cir. 2006) (petitioner must show reasonable due diligence during tolling period)
Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019) (standard of review for BIA legal conclusions)