United States Court of Appeals For the First Circuit

No. 20-1666

ANDREA JOY JAMES,

Petitioner,

v.

MERRICK B. GARLAND,* Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Kayatta and Barron, Circuit Judges, and Saris,** District Judge.

Trina Realmuto, with whom Kristin Macleod-Ball, Tiffany Lieu, National Immigration Litigation Alliance, and Kira Gagarin were on brief, for petitioner. Jeffrey R. Meyer, Attorney, Office of Immigration Litigation, with whom Brian Boynton, Acting Assistant Attorney General, Civil Division, and Stephen J. Flynn, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr. ** Of the District of Massachusetts, sitting by designation. October 25, 2021 KAYATTA, Circuit Judge. After an immigration judge (IJ)

ordered petitioner Andrea Joy James removed from the United States,

the Board of Immigration Appeals (BIA) dismissed James's appeal as

untimely. In so doing, the BIA failed to address James's request

to apply equitable tolling in assessing whether her appeal was

timely. For that reason, we vacate the BIA's dismissal of James's

appeal and remand for the BIA to assess in the first instance

whether the thirty-day time limit for appealing the IJ's order

should have been equitably tolled so as to render James's appeal

timely. Our reasoning follows.

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

(a)(6)(A)(i), and her

controlled substance convictions, see

§§ 1182(a)(2)(A)(i)(II),

- 3 - (a)(2)(C). After those charges were sustained by the IJ, James

applied for asylum, withholding of removal, and protection under

the United Nations Convention Against Torture (CAT) based on her

fear of returning to Jamaica. At a hearing on February 19, 2020,

at which James appeared pro se, the IJ denied James's requests for

relief and ordered her removed to Jamaica. By regulation, any

appeal was due "within 30 calendar days after" the IJ's decision.

(b). The written memorandum of the IJ's removal

order, which was personally served on James the day of the hearing,

listed an incorrect appeal deadline of March 18, 2020 (the correct

deadline was March 20, 2020).1

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),

1 This is not the only oddity with the written memorandum, which (as is typical) was simply a form indicating whether relief was granted, rather than an explanation of the IJ's reasoning for denying relief. See Centro Legal de la Raza v. Exec. Off. for Immigr. Rev., No. 21-cv-00463-SI,

, at *3 n.2 (N.D. Cal. Mar. 10, 2021). The memorandum was not signed by the IJ, and though it listed an appeal deadline, boxes checked on the order appear to indicate that James waived her right to appeal. The government, however, does not argue that James's appeal was waived, nor did the BIA's dismissal of the appeal as untimely acknowledge the issue of waiver, let alone suggest that the appeal had been waived. Because our review is limited to the grounds the BIA offered for its decision, we make no determination either way concerning this issue. See SEC v. Chenery Corp.,

(1943).

- 4 - https://www.who.int/docs/default-source/coronaviruse/situation-

reports/20200131-sitrep-11-ncov.pdf?sfvrsn=de7c0f7_4; U.S. Dep't

of Health & Hum. Servs., Determination that a Public Health

Emergency Exists (Jan. 31, 2020),

https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-

nCoV.aspx. On March 10, 2020, just ten days before James's appeal

deadline, the governor of Massachusetts declared a state of

emergency due to COVID-19. Press Release, Charlie Baker, Governor,

Commonwealth of Mass., Governor Baker Declares State of Emergency

to Support Commonwealth's Response to Coronavirus, (Mar. 10,

2020), https://www.mass.gov/news/governor-baker-declares-state-

of-emergency-to-support-commonwealths-response-to-coronavirus.

Within days, the World Health Organization declared COVID-19 a

pandemic, and the United States declared COVID-19 a national

emergency. See WHO Director-General's opening remarks at the media

briefing on COVID-19, World Health Org. (Mar. 11, 2020),

https://www.who.int/director-general/speeches/detail/who-

director-general-s-opening-remarks-at-the-media-briefing-on-

covid-19---11-march-2020; Proclamation No. 9994,

(Mar. 13, 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),

, 445

- 5 - (D. Mass. 2020) (quoting Comm. for Pub. Counsel Servs. v. Chief

Just. of the Trial Ct.,

, 531 (Mass. 2020)); Savino

v. Souza (Savino II),

, 331 (D. Mass. 2020)

(finding "acute flaws in the government's prevention strategy" at

BCHOC, including a "lack of testing and contract tracing").

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

- 6 - serious complication[s] from her diabetes and high blood

pressure." The "supplement" included with James's notice of appeal

argued that "because the 30-day appeal period set forth in

(b) is a claim-processing rule, the BIA must conduct

individualized, administrative review to determine whether it will

accept the late appeal." The supplement further argued that

"[b]ecause Respondent has requested equitable tolling of the

appeal deadline, the appeal must be stayed, at a minimum, until

[the] Board determines whether the filing deadline . . . must be

tolled." In addition, James checked a box on her notice of appeal

indicating that she intended to file a separate written brief after

filing the appeal. The notice of appeal informed James that if

she checked that box, she would be "expected to file a written

brief or statement after . . . receiv[ing] a briefing schedule

from the Board."

On June 19, 2020, the BIA summarily dismissed James's

appeal as untimely. See

(d)(2)(i)(G) (providing

that the BIA "may summarily dismiss any appeal" in which the

"appeal is untimely"). In doing so, the BIA construed James's

motion to accept her untimely appeal as a request to "accept the

untimely appeal by certification." See Matter of Liadov,

(B.I.A. 2006) (explaining that even if an appeal

is untimely, "[w]here a case presents exceptional circumstances,

the Board may certify a case to itself under 8 C.F.R.

- 7 - § 1003.1(c)").2 After noting the reasons James provided for her

late filing -- including her detention, inability to retain legal

counsel, and serious health complications -- the BIA concluded

"[t]hese are not sufficient reasons to excuse the untimely filing

of a notice of appeal, and so we decline to consider this appeal

by certification."

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

(c)(1) (providing that in "cases

that are transcribed, the briefing schedule shall be set by the

[BIA] after the transcript is available" and that "[i]n all cases,

the parties shall be provided 21 days in which to file simultaneous

briefs unless a shorter period is specified by the [BIA]").

In this timely petition for review by this court, James

requests that we vacate the BIA's order of dismissal and remand

2 Recently, the Department of Justice amended section 1003.1(c) to eliminate the BIA's authority to self-certify untimely appeals. See Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,

, 81,591 (Dec. 16, 2020) (to be codified at

, 1240). Implementation of that amendment, however, is currently enjoined. See Centro Legal de la Raza,

, at *1, *44.

- 8 - for the BIA to consider her equitable tolling claim. The

government opposes James's arguments and contends that we lack

jurisdiction over this petition for review.3

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,

(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

at

263–64 (considering petitioner's "objections to the BIA's

untimeliness ruling"); Liadov v. Mukasey,

, 1006–07

(8th Cir. 2008) (holding "that an alien whose appeal to the BIA

3 James claims in the alternative that the BIA erred by deviating from what she describes as the BIA's "settled course" of self-certifying late appeals in similar and less compelling circumstances. Because we agree with James's primary ground for remand, we do not reach this alternative claim.

- 9 - was dismissed as untimely is precluded from judicial review of the

merits of the removal order" but that "a reviewing court

necessarily has jurisdiction to review the agency's jurisdictional

ruling"); Sswajje v. Ashcroft,

(6th Cir. 2003)

(noting that the court lacked "jurisdiction to review the

immigration judge's decision" on the merits due to the petitioner's

untimely appeal, but considering the petitioner's claim that

"'extraordinary and unique circumstances'" excused his late

filing).

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,

(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

- 10 - together with a notice of appeal does not preserve any right James

might have had to benefit from equitable tolling. Nor can we agree

that James was indirect or vague. To the contrary, she was crystal

clear: James argued that "because the 30-day appeal period set

forth in

(b) is a claim-processing rule, the BIA

must conduct individualized, administrative review to determine

whether it will accept the late appeal." She further argued that

"[b]ecause Respondent has requested equitable tolling of the

appeal deadline, the appeal must be stayed, at a minimum, until

[the] Board determines whether the filing deadline . . . must be

tolled."

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,

(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.,

(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,

(9th Cir. 2011) (noting that the court

is "particularly careful to give claims raised by pro se

petitioners their most liberal construction"). Indeed, in

- 11 - discussing filing deadlines, the Department of Justice recently

noted that although the BIA "has not formally adopted such a rule,

by practice, it . . . construes pro se filings liberally."

Appellate Procedures and Decisional Finality in Immigration

Proceedings; Administrative Closure,

, 81,597

n.23 (Dec. 16, 2020) (to be codified at

, 1240).

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 section 1003.38(b) is subject to equitable tolling. But

the government has not contested James's argument that equitable

tolling can be employed to extend the thirty-day deadline for

appealing an IJ's decision. The government does not contend, for

example, that it has no jurisdiction to apply equitable tolling

once thirty days have passed. Cf. United States v. Wong,

, 408–09 (2015) (holding that where "Congress made the time bar

at issue jurisdictional," a "litigant's failure to comply with the

bar deprives a court of all authority to hear a case"). While

that issue is not before us here, we note that four of our sister

circuits have held that the thirty-day deadline is not

jurisdictional. See Attipoe v. Barr,

, 80–82 (2d Cir.

2019); Irigoyen-Briones v. Holder,

, 947–49 (9th Cir.

- 12 - 2011); Liadov v. Mukasey,

, 1008 n.4 (8th Cir. 2008);

Huerta v. Gonzales,

, 755–57 (10th Cir. 2006). We are

aware of no circuit holding to the contrary.

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,

, 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,

(1st Cir. 2019) (quoting Meng Hua Wan

v. Holder,

(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

- 13 - certification. In making this argument, the government relies on

Daoud v. Barr,

(1st Cir. 2020). But Daoud did not

involve self-certification; to the contrary, in Daoud, "the BIA

did consider, and reject, the application of equitable tolling."

.

Moreover, self-certification and equitable tolling are

not quite the same. Cf. Bolieiro v. Holder,

(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,

;

(c)(2020) (providing that the

BIA "may in any case . . . certify such case to the [BIA]"

(emphasis added)). Under the equitable tolling standard, however,

a petitioner is "'entitled to equitable tolling' . . . if he shows

'(1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way.'" Holland v.

Florida,

(2010) (emphasis added) (quoting Pace

v. DiGuglielmo,

(2005)). Unsurprisingly, then,

self-certification and equitable tolling also differ procedurally.

The BIA's sua sponte indulgence is generally "unfettered" absent

circumstances not present here. Luis v. INS,

(1st

Cir. 1998); Thompson v. Barr,

, 480–83 (1st Cir. 2020);

see also Abdulla v. Att'y Gen.,

, 413–14 (3d Cir.

2020). In contrast, we have reviewed denials of equitable tolling

- 14 - for abuse of discretion. See, e.g., Vázquez-Rivera v. Figueroa,

, 49–51 (1st Cir. 2014); Tay-Chan v. Barr, 918 F.3d at

213 (reviewing for abuse of discretion BIA's denial of motion to

reopen where BIA declined to equitably toll filing deadline).

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,

("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

- 15 - be particularly inappropriate here, given that James specifically

indicated that she sought to file a written brief fleshing out her

arguments, and yet was denied that opportunity when the BIA

summarily dismissed her appeal.

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 section 1003.38(b)'s filing deadline.

- 16 -