The Board of Immigration Appeals (BIA), in an important precedent decision, has recently reversed its position regarding its authority to accept appeals that were filed untimely. Matter of Morales-Morales, 28 I&N Dec. 714 (BIA 2023). It has now held that it has the authority to apply the principle of “equitable tolling” and accept untimely filings where the appealing party establishes that they were 1) diligent in the filing of the appeal, and 2) an extraordinary circumstance prevented timely filing. In doing so, the BIA overturned a prior decision holding that the regulation governing the filing of appeals must be applied strictly and allowed no authority for an extension. Matter of Liadov, 23 I&N Dec. 990 (BIA 2006).

The regulation at issue is 8 CFR § 1003.38(b), which states that an EOIR-26, Notice of Appeal from the Decision of an Immigration Judge (IJ), must be filed with the BIA within 30 calendar days of the date of the IJ’s oral decision or the mailing or electronic transmittal of a written decision. The question before the BIA was whether this regulation is a “claims-processing rule,” which would allow some flexibility and the application or equitable tolling, or “jurisdictional rule,” which would not.

In this case, the respondent’s applications for relief were denied by an IJ on Dec. 13, 2021. The respondent’s attorney prepared the notice of appeal and mailed it to the BIA on Jan. 10, 2022, but accidentally sent the appeal by regular instead of express mail. The BIA did not receive the appeal by the Jan.12, 2022, filing deadline, so it dismissed the appeal as untimely. The respondent then filed a timely motion to reconsider, which the BIA also denied, and the respondent appealed that decision.

The BIA explained that many circuit courts disagreed with Matter of Liadov because it is holding construed 8 CFR § 1003.38(c) to prescribe that the BIA has no authority to extend the filing deadline, thereby treating the deadline as jurisdictional. The BIA quoted the Supreme Court’s decision in Kontrick v. Ryan, 540 U.S. 443 (2004), which held that courts should only treat a rule as jurisdictional if it delineates the classes of cases (subject-matter jurisdiction) or the persons (personal jurisdiction) that fall within a court’s adjudicatory authority. The BIA differentiated the regulatory deadline for the filing of an appeal under 8 CFR § 1003.38(b) from the statutory 30-day filing deadline for petitions for review of final orders of removal under INA § 242(b)(1). The Supreme Court has said that the latter deadline is “mandatory and jurisdictional.” The BIA then agreed with the circuit courts that 8 CFR § 1003.38(b) is a claim-processing instead of a jurisdictional rule. As such, the BIA will now carve out an exception to the strict 30-day filing deadline for equitable tolling.

Equitable tolling is a court’s discretionary extension of a filing deadline when a party can prove they diligently tried to comply with the original deadline, but an extraordinary circumstance prevented them from doing so. The BIA stated that it will apply the equitable tolling rule from Holland v. Florida, 560 U.S. 631 (2010) for untimely appeals where the appealing party clearly establishes in the motion to accept an untimely appeal that: 1) they have been pursuing their rights diligently, and 2) some extraordinary circumstance prevented timely filing.

Applying the equitable tolling standard to Mr. Morales-Morales’ case, the BIA considered that the respondent retained counsel for the filing of the appeal only five days before the appeal was due and did not sufficiently explain what steps he took in the first 25 days to diligently pursue the appeal. The BIA also found that the respondent did not show that an extraordinary circumstance prevented timely filing because an inadvertent act of mailing the appeal via regular mail is typically not an extraordinary circumstance. Therefore, the BIA found that equitable tolling did not apply in this case and denied the respondent’s motion to reconsider.

In preparing a motion for untimely filing or motion to reconsider, practitioners should present their client’s strongest arguments for equitable tolling, along with any corroborating evidence. Where the reason behind the untimely appeal was a mailing delay, practitioners should highlight where reasonable expectations about the delivery date were interrupted by a superseding factor. Most EOIR-26 appeals will be filed electronically, so the issue of mailing will be less of an issue moving forward.

It is unfortunate that the BIA did not choose one of the many pending appeals that do not relate to mailing delays and in which the respondent presented compelling arguments for equitable tolling. Had it done so, it would have provided a more thorough analysis of circumstances that would have established diligence and extraordinary circumstance.