December 2, 2024
Immigration – Equitable tolling
BY Massachusetts Lawyers Weekly
Where a notice of appeal was received by the Board of Immigration Appeals one day late, the BIA’s dismissal of the appeal as untimely must be vacated because the BIA applied the incorrect legal standard, overlooked certain evidence and departed from its precedent in determining that the appellant was not entitled to equitable tolling.
“After she was initially denied asylum and other relief, Gleysi Idalia Diaz-Valdez (‘Diaz’) tried to appeal to the Board of Immigration Appeals (‘BIA’). She mailed her Notice of Appeal to the proper BIA facility in Virginia using Federal Express’s (‘FedEx’) next-day delivery service, anticipating that her filing would arrive on the morning of the appeal deadline. But the BIA received Diaz’s filing one day late, which resulted in a summary dismissal of her appeal. Diaz then requested that the BIA accept her late filing, in light of FedEx’s failure to deliver the appeal package on time. Construing her request as a motion to reconsider its summary dismissal, the BIA decided not to equitably toll the appeal deadline and denied the motion.
“In this petition for review, Diaz challenges the BIA’s denial of her request to equitably toll the appeal deadline. We conclude that the BIA applied the incorrect legal standard, overlooked certain evidence, and departed from its precedent in determining that Diaz was not entitled to equitable tolling. Thus, we grant Diaz’s petition, vacate the BIA’s order, and remand for further proceedings. …
“Diaz argues that the BIA committed legal error, and therefore abused its discretion, when it determined that the record evidence was insufficient to establish equitable tolling. She also argues, alternatively, that the BIA acted arbitrarily and capriciously by failing to apply a ‘mailbox rule’ for the filing of her paper documents. We agree with Diaz on her first point and thus do not reach her second argument.
“The BIA recently issued a precedential opinion deciding for the first time that its thirty-day appeal deadline is subject to ‘an important exception’ for ‘equitable tolling.’ Matter of Morales-Morales, 28 I. & N. Dec. 714, 716 (BIA 2023). …
“In deciding whether to toll the thirty-day appeal deadline, the BIA applies the two-part test set out in Holland v. Florida, 560 U.S. 631 (2010). … To satisfy that test, a party seeking equitable tolling must establish that she ‘has been pursuing [her] rights diligently’ and that an ‘extraordinary circumstance’ nevertheless ‘prevented timely filing.’ …
“We begin with diligence. The BIA determined that the evidence in the record was insufficient to establish that Diaz had been pursuing her rights diligently. In our view, that conclusion was legally incorrect for two reasons. First, the BIA applied the wrong legal standard in evaluating the evidence before it when it brushed aside counsel’s unrebutted representation about when a legal document was mailed. Second, the BIA overlooked other documentary evidence that supported counsel’s representation. We thus vacate the BIA’s insufficiency holding and remand to the BIA to reevaluate Diaz’s diligence showing under the correct legal standard. …
“The BIA ruled against Diaz on diligence because it concluded that there was ‘insufficient evidence’ in the record that Diaz ‘delivered the appeal to Federal Express on the claimed date’ — September 4, 2021. …
“… In our view, the government’s claim that there was insufficient evidence to show that counsel ‘delivered the appeal to Federal Express’ on September 4 rests on either speculation or a strained interpretation of counsel’s representation to the BIA. It repeats the agency’s legal error of brushing aside the representation of Diaz’s counsel. And it fails to address that the agency overlooked other evidence, namely the instructions in the Special Handling Section of the FedEx Tracker and the FedEx label, for no obvious reason.
“Importantly, an attorney’s representation to a court that they sent a filing on a certain date is generally accepted as sufficient to establish the date of mailing. Courts around the country routinely rely on such representations. …
“We see no reason why Diaz’s counsel’s representation should be treated any differently. Like any member of the bar appearing before a federal court or federal agency, Diaz’s counsel was obligated to tell the truth in his representations to the BIA. …
“What’s more, the BIA did not discuss in its decision either the FedEx label or the ‘Saturday Pickup’ instructions in the FedEx Tracker, which backed up the representation by Diaz’s counsel. That, too, was legal error. …
“… The fact that FedEx shipped the package on September 7 was not disputed; rather, it was the entire point of the motion to reconsider. Diaz’s counsel requested equitable tolling because, he represented, FedEx failed to ship the Notice of Appeal on time. To be sure, it was Diaz’s burden to clearly establish that she was entitled to equitable tolling based on all the evidence, including the background understanding that FedEx generally meets its delivery guarantees. And the government would have an argument that the other evidence in the record was contradictory if, for example, the FedEx label had indicated that it was created at 10 p.m. on September 4, 2021, a time so late that delivery of the package to FedEx on that day would appear highly improbable. But here the label indicates that it was created before the close of business, at 3:42 p.m.
“For all these reasons, the BIA’s conclusion that there was insufficient evidence to establish a September 4 mailing was based on legal error. The agency impermissibly disregarded the representation of Diaz’s counsel and failed to consider other evidence supporting that representation. The government fails to point to any case law or other legal authority (or anything in the BIA’s practice guidelines) indicating that the type of evidence submitted here is insufficient to establish the basic fact that Diaz tendered her appeal package to FedEx on September 4. Accordingly, we vacate the BIA’s insufficiency holding, … and remand to the BIA to evaluate under the appropriate legal standard whether the record evidence here satisfies the reasonable-diligence test. …
“Even if Diaz were reasonably diligent in pursuing her rights, she also must show ‘that some extraordinary circumstance prevented timely filing’ to establish that she is entitled to equitable tolling. Morales-Morales, 28 I. & N. Dec. at 717 (citing Holland, 560 U.S. at 649). We hold that the BIA abused its discretion by inexplicably departing from its own binding precedent in Morales-Morales in evaluating whether extraordinary circumstances existed here. …
“… Specifically, the BIA concluded that Diaz’s ‘contention that the federal holiday [was] an exceptional circumstance … [was] unpersuasive because the holiday [was] not an unexpected event.’ It also stated that Diaz’s ‘reliance on a courier service’ was an ‘insufficient reason to grant the respondent’s motion.’
“But the thrust of Diaz’s motion — that FedEx had delivered her filing one day later than expected — was clear. Diaz explained that she sent the Notice of Appeal to the BIA on September 4, 2021, using FedEx’s next-day delivery service, meaning that FedEx was supposed to deliver the package on September 7, 2021, the next business day, but failed to do so. The BIA’s apparent conclusion that Diaz was arguing that the holiday itself was an extraordinary circumstance is not supported by the record.
“… Although the BIA cited to Morales-Morales, it did not apply the reasoning of that decision to Diaz’s case. … Nor did the BIA offer any explanation as to why its discussion in Morales-Morales, seemingly squarely on point here, would not compel a favorable outcome for Diaz. …”
Diaz-Valdez v. Garland (Lawyers Weekly No. 01-252-24) (23 pages) (Rikelman, J.) Kristian R. Meyer, with whom Kevin P. MacMurray and MacMurray & Associates were on brief, for the petitioner; Dana M. Camilleri, with whom Anthony P. Nicastro and Brian M. Boynton were on brief, for the respondent; Mary Holper, with whom Cassandra Harris and Deepti Sailappan were on brief, for amici curiae Boston College Legal Services LAB Immigration Clinic, Boston University School of Law Immigrants’ Rights and Human Trafficking Program, Central West Justice Center, Justice Center of Southeast Massachusetts, Massachusetts Law Reform Institute, Northeastern University School of Law Immigrant Justice Clinic, Political Asylum/Immigration Representation Project, Suffolk University Law School Immigrant Justice Clinic, Susanna Stern, Paul Schmidt, Philip Torrey, Sabrineh Ardalan, Jane Rocamora, Deborah Gonzales, Anna Welch, Sara Cressey and Roni Amit (Docket No. 23-1576) (Nov. 22, 2024).