Benoy Thomas v. Attorney General United States
21-2065
| 3rd Cir. | Jan 6, 2022Background
- Petitioner Benoy Thomas, an Indian national, convicted of an aggravated felony (illicit drug trafficking), faced administrative removal after entering the U.S. in January 2016.
- An Immigration Judge (IJ) issued an oral decision denying Thomas’s withholding of removal and CAT relief on January 21, 2021.
- BIA rules required a notice of appeal to be received by the Board within 30 days; the deadline here was Feb 22, 2021.
- The Board did not receive Thomas’s notice of appeal until March 1, 2021, and dismissed the appeal as untimely.
- Thomas contended (in this Court) he mailed the appeal on time, omitted a fee-waiver form by mistake, and had limited law-library access in detention; the record shows no exhaustion of these claims before the BIA.
- The Court denied the petition for review, holding the BIA properly dismissed the appeal and that Thomas failed to exhaust administrative remedies and showed no extraordinary circumstances to excuse untimeliness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA properly dismissed Thomas’s appeal as untimely under the 30‑day rule | Thomas says he mailed the appeal on time, but as a pro se, detained litigant he omitted the fee‑waiver and had limited access to law library/computers | BIA/Gov’t: appeal was received after the 30‑day period and the notice lacked the required fee/waiver; receipt date controls | Dismissal was proper: BIA received the notice one week late; timeliness requirement enforced |
| Whether Thomas’s equitable/excusable‑delay arguments can be considered (extraordinary circumstances / tolling) | Thomas says detention and limited legal access, and an honest mistake in omitting the fee waiver justify excusing the deadline | Gov’t: Thomas failed to present these arguments to the BIA (no exhaustion); even if raised, his facts do not show extraordinary circumstances like official misleading or express‑mail delay | Court lacked jurisdiction to consider unexhausted claims; even if considered, allegations do not meet the extraordinary‑circumstances standard |
Key Cases Cited
- Irigoyen-Briones v. Holder, 644 F.3d 943 (9th Cir. 2011) (holds 30‑day BIA appeal period may be nonjurisdictional and excused in extraordinary circumstances)
- Zhong Guang Sun v. U.S. Dep’t of Justice, 421 F.3d 105 (2d Cir. 2005) (defines extraordinary circumstances to include official misleading or express‑mail delay)
- Huerta v. Gonzales, 443 F.3d 753 (10th Cir. 2006) (treats the 30‑day BIA deadline as a mandatory claim‑processing rule)
- Lin v. Att’y Gen., 543 F.3d 114 (3d Cir. 2008) (failure to raise an issue before the BIA is failure to exhaust and deprives the court of jurisdiction)