Case Information
*1 204 v. Barr UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________ August Term,
(Argued: February Decided: December 19, 2019)
Docket No. ____________________
EMELI KWASI ATTIPOE, AKA EMELI ATTIPOE, AKA ANDREW C. MITCHELL,
Petitioner WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
Respondent . ____________________
Before: POOLER, LOHIER, CARNEY, Circuit Judges
Petition review January Board Immigration Appeals (“BIA”) refusing Emeli untimely Judge’s July order removal Ghana. erred *2 refusing consider whether argument deadline, is nonjurisdictional, subject equitable tolling exception. find claim processing rule amenable equitable tolling, remand develop standards for equitable tolling determine whether qualifies for those standards.
Petition granted.
____________________ MATTHEW J. MOFFA, Perkins Coie LLP (Gene W. Lee, on brief ), New York, NY, Petitioner Emeli Kwasi . BRETT F. KINNEY, Department Justice, Civil Division, Office Immigration Litigation (Joseph J. Hunt, Assistant Attorney General, Kohsei Ugumori, Senior Litigation Counsel, brief ), Washington, D.C., Respondent William P. Barr TRINA REALMUTO, American Immigration Council (Kristin Macleod Ball, brief ), Brookline, MA, amicus curiae support Petitioner.
POOLER, Circuit Judge :
Petition review January Board Appeals (“BIA”) refusing Emeli untimely *3 Judge’s (“IJ”) July order removal to Ghana. erred in refusing to consider whether argument deadline, nonjurisdictional, is subject equitable tolling exception. find a claim ‐ processing rule amenable equitable tolling, remand develop standards equitable tolling and determine whether Attipoe qualifies those standards.
Petition granted.
BACKGROUND
Attipoe, native citizen Ghana, entered United States in as lawful permanent resident. In April Attipoe pled guilty Connecticut attempted first ‐ degree larceny violation Connecticut General Statutes (“CGS”) §§ 53a 53a He was initially sentenced three years’ imprisonment (execution suspended) three years’ probation, but sentence later modified simply impose $1,950 fine. August Department Homeland Security (“DHS”) placed removal proceedings based Connecticut conviction. DHS later amended charges removability, ultimately charging removable convictions two more crimes involving moral turpitude based
both Connecticut conviction and Texas conviction theft, an aggravated felony involving fraud or deceit the loss exceeded $10,000, an attempt commit an aggravated felony. In July following hearing, IJ ordered Attipoe removed.
As relevant here, IJ concluded attempted larceny conviction under CGS §§ 53a 53a was an aggravated felony, rendering Attipoe statutorily ineligible cancellation of removal. analyzing issue, IJ employed modified categorical approach, delved into disposition plea minutes. The IJ determined convicted of attempting obtain property excess of $10,000 through false pretenses, aggravated felony two subsections U.S.C. § 1101: (a)(43)(M)(i), fraud loss victim excess $10,000; (U), attempt commit aggravated felony. IJ’s decision did inform right doing so, cover letter accompanying did check off option stating IJ’s “decision final unless Board Appeals within calendar dates date mailing this written decision.” App’x
Attipoe received a copy IJ’s from his lawyer, Saul Brown, roughly a week after it issued. Attipoe then called Brown, who told Attipoe he would charge between $2,000 and $3,000 handle Attipoe’s appeal. Unable afford Brown’s fee, Attipoe asked around detention center for attorney referrals, and someone suggested Michael Reeves. Other detainees vouched for Reeves, and Attipoe contacted him a day two after speaking with Brown. Attipoe entered into agreement for Reeves file a notice appeal habeas corpus petition $500, sister paid Reeves on July 19, 2016. Despite numerous attempts reach Reeves confirm notice appeal, neither Attipoe nor his family ever heard from Reeves following payment.
Attipoe called BIA shortly before August 8, confirm pending, but BIA clerk told him notice had been filed. Hoping Reeves had sent appeal, had simply yet been filed, August 10, 2016, Attipoe filed request stay removal BIA, stating he had pending. also “Request Emergency Extension” August On August received BIA’s denial stay request, *6 explained was denied because Attipoe did not have an appeal pending. The BIA also rejected Attipoe’s “Request for an Emergency Extension,” stating “the regulations set strict deadlines for the of an appeal, and the Board does have authority to extend time to file Notice Appeal.” App’x 64. But BIA also enclosed necessary forms Attipoe to file for an extension to appeal.
Attipoe began actively recruiting new counsel, reaching out immigration attorneys law clinics, mailing out photocopies his file, and making telephone calls. Unable find representation, acting pro se, mailed his form, an application fee waiver, “Motion Accept Notice Appeal,” “Emergency Motion Stay Removal” on October 2016. He mailed additional packet same material BIA via two day priority mail October 2016. received Attipoe’s notice October pro se motion his appeal, argued should toll because was jurisdictional; attorney he
hired bring failed do so; equities weighed favor; he detained, limiting risk flight. DHS moved dismiss *7 appeal, arguing that there were no exceptional circumstances that warranted BIA exercising discretionary authority accept appeal via certification. Shortly thereafter, Attipoe obtained counsel, who filed new notice of appeal, motion untimely appeal, request emergency stay of removal. Attipoe’s counseled brief reiterated arguments support argued even if his appeal was untimely, BIA should grant reopening sua sponte given IJ’s determination ineligibility cancellation removal erroneous. January BIA dismissed appeal untimely. The BIA
found no “exceptional circumstances meriting acceptance respondent’s untimely certification.” App’x at 3. The “acknowledge[d] [Attipoe’s] arguments alleging difficulties individual hired file his appeal,” but found failed comply necessary requirements lodge ineffective assistance counsel claim Matter Lozada I. & N. Dec. (BIA 1988). App’x noted received IJ’s notice option appeal, found subsequent difficulties did constitute exceptional circumstances given he more than two months late. Id
One panel member dissented, stating “demonstrated exceptional circumstances warranting acceptance late appeal by certification pursuant to C.F.R. § 1003.1(c)” without explaining why. App’x On merits, dissent argued case should be remanded because IJ wrongly found Attipoe’s conviction to be an aggravated felony. This appeal followed.
DISCUSSION
A noncitizen has right appeal order removal BIA, but by regulation notice “shall filed . . within calendar days” “the mailing [IJ]’s written decision.” C.F.R. §§ 1003.1(b)(3), 1003.38(a), (b). notice untimely. Nonetheless, we find committed legal error concluding does apply BIA’s appeals regulation, C.F.R. § 1003.38(b). government argues may accept appeals only via self certification process, C.F.R. § 1003.1(c), decision
such appeals entirely discretionary, divesting this Court jurisdiction review such decisions. agree that, extent challenges BIA’s certify pursuant C.F.R. § 1003.1(c), lack
*9
jurisdiction consider from entirely discretionary decision.
Vela ‐
Estrada v. Lynch
,
The government argues BIA’s failure consider whether filing deadline subject irrelevant because BIA previously held neither Nationality Act nor regulations provide authority extend 30 day unless invokes its self certification authority. Matter Liadov , I. & N. Dec. (BIA 2006). government further argues are required defer interpretation its own authority regulations pursuant Auer v. Robbins U.S. (1997) (agency interpretations their own regulations are “controlling unless . . plainly erroneous inconsistent regulation[s]”). But deadlines are matter agency exercises particular technical expertise. See, e.g., Iavorski I.N.S. F.3d (2d Cir. 2000) (“A statute limitations matter *10 within particular expertise INS. Rather, consider this a clearly legal issue courts are better equipped handle.” (internal quotation marks citation omitted)). conclude BIA’s reliance Liadov for proposition
equitable is available for ‐ appeals under Section 1003.38 is misplaced.
Liadov
is odds with precedent this Circuit others, as well Supreme Court’s repeated admonition treat claim ‐ processing rules—such as filing deadline 8 C.F.R. § 1003.38—as jurisdictional.
See, e.g., Henderson v. Shinseki
,
Section 1003.38 was issued pursuant to Section 545(d)(2) of the Immigration Act of which instructs the Attorney General to “issue regulations respect to:”
the time period for the filing of administrative appeals deportation proceedings and for the filing of
appellate reply briefs, which regulations include limitation on the number of administrative appeals may be made, maximum time period for the such motions briefs, the items to included the notice appeal, the consolidation motions to reopen reconsider the appeal the order deportation.
Immigration Act Pub. L. No. 101–649, § 545(d), Stat. 5066.
Liadov
, BIA concluded “[n]either statute nor regulations grant [the BIA] authority extend for appeals.”
Liadov
I. & N. Dec. BIA decided lacks “the authority extend time,” only possible cure find petitioner presented “exceptional circumstances,” would allow pursuant self certification process set forth C.F.R. § 1003.1(c).
Id
Moreover,
Liadov
makes no reference Act 1990—and thus does rely statutory text support conclusions. It relies exclusively
United States Locke
(1985),
*12
proposition that “[t]he Supreme Court has clearly held that filing deadlines must be strictly applied,” that “[a]ccording Court, ‘[a] filing deadline cannot be complied with, substantially otherwise, by filing late—even by one day.’”
Liadov
, 23 I. & N. Dec. at 992 ‐ 93 (quoting
Locke
,
Liadov ’s treatment appellate jurisdictional goes against Supreme Court’s admonition claim processing rules—including most deadlines statutes limitation—are jurisdictional. Henderson Claim processing rules “are rules seek promote *13 orderly progress litigation by requiring that parties take certain procedural steps at certain specified times.” Id. “Filing deadlines . . . are quintessential claim processing rules.” Id. “[A] rule should be referred as jurisdictional unless governs a court’s adjudicatory capacity, is, subject ‐ matter personal jurisdiction.” Id. “Other rules, even if important mandatory . . . should be given jurisdictional brand.” Id.
To determine if a rule is jurisdictional, courts “look see if there is any clear indication Congress wanted rule jurisdictional.” Id. Thus, “[a] rule jurisdictional if Legislature clearly states a threshold limitation a statute’s scope shall count as jurisdictional.” Gonzalez v. Thaler (2012) (internal quotation marks, citation, brackets omitted). As explained United States Kwai Fun Wong: Government must clear a high bar establish a
statute limitations jurisdictional. recent years, have repeatedly held procedural rules, including bars, cabin court’s power only if Congress has clearly stated as much. Absent such clear statement, courts should treat restriction nonjurisdictional. . . [T]raditional tools statutory construction must plainly show Congress imbued procedural bar jurisdictional consequences.
575 402, 409 (2015) (internal quotation marks, citation, brackets, ellipses omitted). While this “line of authority arose in context of courts rather than agencies . . . we find principle useful one here well.”
Ortiz ‐ Santiago Barr
Our Court considered issue of Congress’s intent regard Section 545(d)(1) Immigration Act in Iavorski . Section 545(d)(1) directs Attorney General shall issue regulations respect “the period time motions reopen reconsider may be offered deportation proceedings . . [including] maximum period such motions.” Act Pub. L. No. § 545(d)(1), Stat. 5066. We examined “the text, structure, legislative history, purpose Congress’s amendment INA” found “no indication, either explicit implicit, Congress intended this limitations period” jurisdictional. Iavorski F.3d at Observing “immigration law general possesses no special status where equitable tolling concerned,” rejected government’s argument our Court must defer BIA’s policy rejecting equitable tolling motions reopen. Id. n.4. held ninety day motions reopen *15 removal proceedings was permissible under Section 545(d)(1), because the time limitations at issue were jurisdictional. Id. at
Here, as Iavorski nothing the text Section 545(d)(2) itself, or its legislative history, indicates Congress intended the deadline to be jurisdictional. To the contrary, the House Conference Report states “[u]nless the Attorney General finds reasonable evidence the contrary, the regulations must state administrative appeals made within days except appellate body may, upon motion, extend such period up days, if good cause shown by movant .” H.R. Rep. No. (emphasis added). legislative history thus indicates Congress was amenable idea extending file past deadline upon showing good cause. And BIA may, sua sponte, decide accept late filings self ‐ certification process. It could any filings—exceptional circumstances not—if truly jurisdictional.
We therefore extend Iavorksi ’s interpretation Section 545(d)(1) sister subsection, Section 545(d)(2), hold must consider principles when untimely petitioner raises issue, did here. remand consider whether *16 equitable tolling allows consideration late appeal. is free develop factors it will apply in considering equitable tolling, although we note that it need start from scratch. Holland , Supreme Court set out standards courts apply determining whether equitable tolling appropriate: (1) showing that a petitioner “has been pursuing rights diligently, (2) that some extraordinary circumstance stood way.” 560 at (internal quotation marks omitted). And context motion reopen, have held that petitioners seeking tolling must demonstrate (1) their constitutional rights due process were violated by conduct counsel; (2) they exercised due diligence during putative period. Iavorski F.3d 135; see also Rashid v. Mukasey , F.3d (2d Cir. 2008) (requiring petitioner prove diligence during “both period time before ineffective assistance counsel should have been discovered period from point until motion reopen filed”); Cekic I.N.S. F.3d (2d Cir. 2006) (requiring petitioner “affirmatively demonstrate he exercised reasonable due diligence during period sought tolled”). After determines what *17 standards Section 1003.38 are, should 1 determine whether satisfies those standards. 2
3
4 CONCLUSION
5 For reasons given above, petition granted, BIA’s 6 vacated, this matter remanded further proceedings consistent 7 this opinion. 8