James v. GarlandJames v. Garland
- Reporters:
- ,
- Before:
- Kayatta, Barron, Saris
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
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),
“[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
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
On June 19, 2020, the BIA summarily dismissed James‘s appeal as untimely. See
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
In this timely petition for review by this court, James requests that we vacate the BIA‘s order of dismissal and remand
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
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
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
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
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
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;
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
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