United States Court of Appeals For the First Circuit

No. 23-1576

GLEYSI IDALIA DIAZ-VALDEZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Before

Gelpí, Montecalvo, and Rikelman, Circuit Judges.

Kristian R. Meyer, with whom Kevin P. MacMurray and MacMurray & Associates were on brief, for petitioner.

Dana M. Camilleri, Senior Trial Attorney, with whom Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, and Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, were on brief, for 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.

November 22, 2024 RIKELMAN, Circuit Judge. 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.

I. BACKGROUND

At the age of nineteen, Diaz fled Guatemala, the country

of her birth and citizenship. She entered the United States near

El Paso, Texas, in May 2019, followed shortly by her spouse. Diaz

- 3 - was arrested just inside the border, served with a Notice to Appear

alleging that she was subject to removal, and released on bond two

months later. She then relocated to the greater Boston area to

stay with family.

Once in the Boston area, Diaz applied for asylum and

withholding of removal, claiming that she faced persecution in

Guatemala based on her political opinion and membership in a

particular social group. She also requested protection under the

Convention Against Torture. Her application explained that gang

members had murdered her father-in-law, twice attempted to kill

her husband, and, during one of those attempts, tried to run her

over with a car, requiring Diaz to seek medical attention for a

head injury. After a hearing, an immigration judge ("IJ") denied

her requests for relief on August 6, 2021.

This petition focuses on Diaz's unsuccessful effort to

appeal the IJ's order to the BIA. Noncitizens must file a Notice

of Appeal with the BIA "within 30 calendar days" of a decision by

an IJ.

(b); see also

§ 1003.3(a)(1). Under

BIA regulations, Diaz's thirty-day clock began to run on August 6,

the day the IJ mailed his written decision to her, even though

Diaz did not receive the decision until August 13. See id.

§ 1003.38(b). Taking into account a final weekend and holiday,

Diaz's deadline for filing the Notice of Appeal with the BIA was

- 4 - Tuesday, September 7, 2021, the day after Labor Day.1 The BIA

requires that a Notice of Appeal be sent to its facility in Falls

Church, Virginia, so the vast majority of individuals filing

appeals cannot personally deliver their papers to the BIA.2

At the heart of this case is the BIA's filing rule. The

BIA deems a Notice of Appeal filed on the date that it is received

by the BIA, not the date on which it is sent.

(c). Accordingly, under the BIA's receipt rule, most

individuals must account for the time it takes to mail their Notice

of Appeal to the BIA in Virginia. Given its filing rules, the BIA

advises noncitizens like Diaz to, "whenever possible, use

overnight delivery couriers (such as Federal Express, United

Parcel Service, DHL, etc.) to ensure timely receipt." See U.S.

Dep't of Justice, supra note 2.

1A Notice of Appeal from an IJ's ruling must "be filed directly with the Board of Immigration Appeals within 30 calendar days after the stating of an immigration judge's oral decision or the mailing or electronic notification of an immigration judge's written decision. If the final date for filing falls on a Saturday, Sunday, or legal holiday, this appeal time shall be extended to the next business day."

(b). In this case, the thirty-day deadline fell on September 5, 2021. Because September 5 was a Sunday and September 6 was Labor Day, the appeal deadline was September 7, 2021. 2See BIA Practice Manual: 3.1 - Delivery and Receipt, U.S. Dep't of Justice, https://www.justice.gov/eoir/reference- materials/bia/chapter-3/1 [https://perma.cc/JZ37-9878] (last visited Nov. 21, 2024).

- 5 - According to Diaz, she sent her Notice of Appeal and

supporting documents to the BIA on Saturday, September 4, 2021,

using FedEx's guaranteed next-day delivery service, expecting that

the appeal package would be delivered on Tuesday, September 7.

FedEx delivered the Notice of Appeal to the BIA on September 8,

however, and the BIA deemed it filed on that date. Because Diaz's

Notice of Appeal arrived one day after the filing deadline, the

BIA summarily dismissed Diaz's appeal as untimely, as permitted by

its regulations. See

(d)(2)(i)(G).

Diaz then moved to reconsider and requested that the BIA

treat her appeal as timely filed. Diaz's counsel explained:

During a meeting on the afternoon of September 3, 2021, [Diaz] notified Counsel of her intention to appeal the decision of the Immigration Judge.

On September 4, 2021, Counsel for [Diaz] sent the Notice of Appeal to the BIA through FedEx via overnight delivery service . . . .

FedEx, however, did not ship the package until September 7, 2021, due to the Labor Day Federal Holiday.

(Emphasis added.) With her motion to reconsider, Diaz submitted

a number of documents including a copy of her counsel's original

Notice of Entry of Appearance, the IJ's decision, the original

Notice of Appeal, the money order for the filing fee for the

original Notice of Appeal, and a FedEx-generated document tracking

the package's delivery progress (the "FedEx Tracker"). The record

- 6 - before the BIA also included the BIA's official receipt of Diaz's

filing, BIA-timestamped versions of the original Notice of Entry

of Appearance and of the original Notice of Appeal, and a scan of

the FedEx label accompanying Diaz's original appeal package.3

The record includes multiple pieces of evidence

documenting the chronology surrounding Diaz's appeal filing. For

example, on Friday, September 3, 2021, Diaz's counsel signed the

original Notice of Entry of Appearance and Notice of Appeal and

completed proofs of service of those filings on the U.S.

Immigration and Customs Enforcement office in Boston. The money

order for the appeal filing fee also indicates that it was issued

on Friday. The FedEx label for the entire appeal package was

generated at 3:42 p.m. on Saturday, September 4, according to a

timestamp on the label. Further, the FedEx Tracker notes "Deliver

Weekday, Saturday Pickup" under the "Special Handling Section."

But it also shows that FedEx shipped the package on Tuesday,

September 7, and delivered it at 10:10 a.m. on Wednesday, September

8. Finally, the BIA "acknowledge[d] receipt" of Diaz's appeal on

September 8. That said, the BIA's timestamps of each page of

3 The government has certified all of these documents as part of the administrative record. Thus, we proceed with the understanding that the BIA had all of these documents before it when it made its decision. See Oceana, Inc. v. Ross,

(D.C. Cir. 2019) ("[T]he designation of the Administrative Record, like any established administrative procedure, is entitled to a presumption of administrative regularity." (quoting Bar MK Ranches v. Yuetter,

(10th Cir. 1993))).

- 7 - Diaz's appeal package ranged from 4:33 a.m. to 4:35 a.m. on

September 8, which precedes FedEx's claimed delivery time by nearly

six hours.

The BIA denied Diaz's motion to reconsider, after

interpreting her motion as a request for equitable tolling of the

appeal deadline. The BIA reasoned:

The respondent claims that she diligently pursued her rights because she delivered her appeal to Federal Express 3 days before the filing deadline, but that the delivery service did not ship the package until September 7, 2021, because of the federal holiday on September 6, 2021. However, the record contains insufficient evidence that the respondent delivered the appeal to Federal Express on the claimed date. Moreover, the respondent's contention that the federal holiday is an exceptional circumstance for her untimely filing is unpersuasive because the holiday is not an unexpected event. See Matter of Morales-Morales,

, 717 (BIA 2023). The respondent's reliance on a courier service, where she claims she delivered her appeal 3 days before the filing deadline over a holiday weekend, is an insufficient reason to grant the respondent's motion or to excuse the late filing. See

at 717-18 . . . .

(Emphasis added.) Diaz timely petitioned this court for review of

the BIA's denial of her motion to reconsider.

II. STANDARD OF REVIEW

We have jurisdiction over the BIA's denial of Diaz's

motion to reconsider. See

(a)(1). Because Diaz

did not petition for review of the BIA's initial summary dismissal

- 8 - of her appeal, we lack jurisdiction over that prior decision. See

Hurtado v. Lynch,

(1st Cir. 2016).

The parties spar to some extent about our standard of

review. But our precedent is clear that we review the BIA's denial

of a motion to reconsider for abuse of discretion. See

Martinez-Lopez v. Holder,

(1st Cir. 2013). We

therefore uphold the BIA's decision unless it lacks "a 'rational

explanation, inexplicably depart[s] from established policies, or

rest[s] on an impermissible basis.'" Onwuamaegbu v. Gonzales,

(1st Cir. 2006) (quoting Zhang v. INS,

(1st Cir. 2003)).

The parties do agree that, even under the umbrella

abuse-of-discretion standard, we review the BIA's legal

conclusions de novo. These same principles apply to the BIA's

denial of a request for equitable tolling: We review the ultimate

decision for abuse of discretion and any underlying legal

conclusions de novo. See James v. Garland,

, 326 (1st

Cir. 2021); Tay-Chan v. Barr,

(1st Cir. 2019)

(explaining that we uphold the BIA's decision unless it "rests on

a material error of law or a manifestly arbitrary exercise of

judgment" (quotation marks and citation omitted)).

What the parties disagree on, at least in their briefs,

is whether the BIA's ruling here hinged on primarily legal or

factual analysis. The BIA's decision arguably could be read as

- 9 - refusing to credit the statements of Diaz's counsel about the

mailing of the Notice of Appeal, in which case the BIA's ruling

denying the motion would have been primarily factual. But during

oral argument, the government indicated that this was not how it

read the BIA's decision.4 Rather, the government contended, the

BIA ruled that there was insufficient record evidence to

demonstrate that Diaz had delivered the Notice of Appeal to FedEx

on September 4 and, accordingly, Diaz had not carried her burden

to show she was entitled to equitable tolling. As the government

framed the issue, the BIA concluded that counsel's statement did

not "provide enough information [to] know that FedEx had [the

package] in hand" on September 4.5

Whether a given set of facts meets the standard for

equitable tolling, however, is a legal question. See Niehoff v.

We also note that under the regulations currently in effect, 4

the BIA may not "engage in factfinding in the course of deciding cases," and the term "cases" includes motions to reconsider.

(d)(3)(iv); see also Efficient Case and Docket Management in Immigration Proceedings,

, 46742, 46787 (May 29, 2024) (effective on July 29, 2024). One federal appellate court has suggested, without squarely deciding, that the BIA may engage in factfinding for the limited purpose of deciding equitable-tolling requests. See Williams v. Garland,

, 639 (4th Cir. 2023) (reviewing for substantial evidence a finding of fact by the BIA underlying its equitable-tolling determination). Because no agency factfinding is at issue in this case, we offer no view on the extent of the BIA's factfinding authority in deciding motions requesting equitable tolling. 5The government has never contended that FedEx's Saturday pick-up service was not operational on September 4, 2021.

- 10 - Maynard,

(1st Cir. 2002) (reviewing equitable

tolling decisions de novo where the decision on review does not

"hinge[] on factual determinations"); see also Williams v.

Garland,

, 639 (4th Cir. 2023) (calling this kind of

question "legal work" and applying de novo review (quoting Google

LLC v. Oracle Am., Inc.,

, 24 (2021))). Indeed, the

United States Supreme Court has held that whether equitable tolling

is warranted on a particular set of "undisputed or established"

facts constitutes a "question of law" permitting federal court

jurisdiction (and thus federal court review of a BIA decision)

under

(a)(2)(D). Guerrero-Lasprilla v. Barr,

, 228 (2020). Of course, in so holding, the Supreme Court

necessarily determined that such equitable-tolling questions are

questions of law on the merits. See Nkomo v. Att'y Gen. of the

U.S.,

, 272 (3rd Cir. 2021) (citing to Guerrero-

Lasprilla's holding as authority for de novo review of the BIA's

denial of equitable tolling). Thus, we review de novo the BIA's

conclusion that the record facts here, if assumed to be true, were

not enough to warrant equitable tolling. See Radkov v. Ashcroft,

(1st Cir. 2004); see also Williams, 59 F.4th at

633 (explaining that "courts must separate out the subsidiary

factual or legal or mixed factual and legal determinations to

understand why the Board denied the motion" and then "apply the

usual standards," including "de novo for law" (citing

- 11 - Guerrero-Lasprilla, 589 U.S. at 228)). And "[i]n the immigration

context, as elsewhere, an error of law on the [agency's] part

[amounts to] an abuse of discretion." Radkov,

(citing Rosario-Urdaz v. Rivera-Hernandez,

(1st

Cir. 2003)).

Finally, "[u]nder well-settled principles of

administrative law, we must accept or reject the agency's decision

based on the rationale the agency provides." James, 16 F.4th at

326 (quoting Bolieiro v. Holder,

(1st Cir. 2013)).

We review any rationale that "may reasonably be discerned" from

the agency's decision. Garland v. Ming Dai,

, 369

(2021) (quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys.,

Inc.,

(1974)).

III. DISCUSSION

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.6 We agree with Diaz on her first point

and thus do not reach her second argument.

6 Diaz's arbitrary and capricious claim focuses on the BIA's different treatment of cases filed on or after February 11, 2022, which can benefit from the BIA's new electronic filing process

- 12 - 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,

, 716 (BIA 2023). Equitable

tolling became available after the BIA held, in Morales-Morales,

that the appeal deadline is a claims-processing rule, not a

jurisdictional one.

(overruling Matter of Liadov,

(BIA 2006)).

In deciding whether to toll the thirty-day appeal

deadline, the BIA applies the two-part test set out in Holland v.

Florida,

(2010). See Morales-Morales, 28 I. & N.

Dec. at 717. 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." Id. (citing Holland,

).

The burden is on the party requesting equitable tolling to "clearly

establish" both diligence and extraordinary circumstances. Id.;

cf. Gyamfi v. Whitaker,

(1st Cir. 2019)

(explaining, in habeas context, that burden rests with "the party

seeking to toll the deadline" (citing Neves v. Holder, 613 F.3d

permitting same-day filing of legal documents, and cases filed before February 11, 2022, which continue to be subject to the previous paper-filing requirements. See Executive Office for Immigration Review Electronic Case Access and Filing,

, 70708 (Dec. 13, 2021).

- 13 - 30, 36 (1st Cir. 2010))). A party who makes the requisite showing

on both prongs is "entitled to equitable tolling." James, 16 F.4th

at 325-26 (quoting Holland,

); see also

Morales-Morales, 28 I. & N. Dec. at 717 ("The Board will accept

late-filed appeals where a party can establish equitable tolling

applies." (emphasis added)).

Further, because the BIA in Morales-Morales explicitly

imported the equitable-tolling rule from Holland into agency

practice, we assume without deciding that the agency's standard

and the judicial standard for equitable tolling are one and the

same. See Morales-Morales, 28 I. & N. Dec. at 717 ("[W]e will

apply the equitable tolling rule from Holland . . . ."). Thus, we

rely on federal court decisions applying the Holland standard, as

we have not been able to identify a single decision after

Morales-Morales, published or unpublished, in which the BIA

equitably tolled the thirty-day appeal deadline.7

A. Diligence

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

7Our search included a review of all commercially available databases.

- 14 - 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 diligence prong serves to filter out cases in which

"a litigant was responsible for [her] own delay." Menominee Indian

Tribe of Wisc. v. United States,

, 257 (2016). To

establish diligence, Diaz need not show that she acted with

"maximum feasible diligence." Holland,

(quotation

marks and citation omitted). Thus, she does not need to

demonstrate that she "left no stone unturned." Ramos-Martinez v.

United States,

(1st Cir. 2011) (citing Baldayaque

v. United States,

(2d Cir. 2003)). Instead, she

"must show that [s]he has exercised 'reasonable diligence' to

protect [her] own interests."

at 323-24 (quoting Holland,

).

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 so ruling, the BIA determined that

the representation by Diaz's counsel that "[o]n September 4, 2021,

[he] sent the Notice of Appeal to the BIA through FedEx via

- 15 - overnight delivery service" was legally insufficient. The BIA's

decision also made no mention of the documents in the record that

supported counsel's representation, including the FedEx label and

the "Deliver Weekday, Saturday Pickup" instructions in the FedEx

Tracker.

The government attempts to shore up the BIA's conclusion

that this evidence was insufficient. It argues that the record

lacked information showing "where and when" Diaz "tendered the

package to FedEx," whether Diaz tendered the Notice of Appeal "to

FedEx at a time prior to final overnight delivery," or whether

FedEx "indicated that the document would be mailed overnight on

September 4, 2021." The government also casts doubt on the

probative value of the shipping label, arguing that it is "just"

a "print-out from FedEx submitted with the [Notice of Appeal]"8

that "simply indicates that a mailing label was created on

September 4, 2021."

We are unconvinced. 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

We take judicial notice of the fact that many law firms and 8

governmental organizations have their own FedEx accounts and thus generate their own FedEx labels, which are also printouts.

- 16 - 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. See, e.g., United

States v. Rainey,

(8th Cir. 2010) (relying on

certification of service to establish the fact of mailing); Greene

v. WCI Holdings Corp.,

(2d Cir. 1998) (affirming

the district court's reliance on an affidavit of service stating

that an envelope had been placed in a mailbox on a particular

date); United States v. Kennedy,

(D.C. Cir. 1998)

(reasoning, in a case where mailing was never received, that

"timely filing" of a statement of service "supports an inference

of regularity"); see also United States v. Wright,

(4th Cir. 2000) (unpublished) (per curiam) (holding that a

"presumption that the information actually was mailed attaches to

[a] valid certificate of service" (citing Timmons v. United States,

(4th Cir. 1952))).

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

- 17 - was obligated to tell the truth in his representations to the BIA.

Further, by filing his Notice of Entry of Appearance, Diaz's

counsel promised the BIA that he would "comply with the EOIR Rules

of Professional Conduct in

." That section

subjects him to sanctions if he "[k]nowingly or with reckless

disregard makes a false statement of material fact or law, or

willfully misleads, misinforms . . . , or deceives any person

. . . , concerning any material and relevant matter relating to a

case, including knowingly or with reckless disregard offering

false evidence."

(c).9

The commonsense meaning of counsel's representation that

"[o]n September 4, 2021, [he] sent the Notice of Appeal to the BIA

through FedEx via overnight delivery service" is that counsel

actually delivered the package to FedEx on that date so that it

could be mailed on that date. Otherwise, counsel's statement that

he "sent" the appeal "to the BIA" "on September 4" would be untrue

or at least misleading, particularly in the context of a motion

requesting tolling of the appeal deadline. Thus, unless the

government is simply discrediting the statement of Diaz's counsel,

9 That section also prohibits false certification, frivolity, undue delay, and other attorney misconduct in immigration proceedings. See

§ 1003.102(i)-(j), (q). Those explicit grounds for sanctions, as well as other applicable rules and obligations governing attorney conduct, should serve to prevent abuse by attorneys who are seeking to establish the factual basis for equitable tolling.

- 18 - the statement is important record evidence supporting equitable

tolling.

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 BIA "cannot turn a blind

eye to salient facts," Sihotang v. Sessions,

(1st

Cir. 2018), and its failure to mention the label or "Saturday

Pickup" instructions "strongly suggests it 'completely overlooked

critical evidence,'" Aguilar-Escoto v. Garland,

, 516-

17 (1st Cir. 2023) (quoting Sihotang,

). The

government, for its part, also overlooks the instructions.

Instead, it argues that the FedEx Tracker, which states that the

package was shipped on September 7 and delivered on September 8,

contradicted counsel's statements.

Again, we disagree with the government. 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

- 19 - 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, see

Radkov,

, and remand to the BIA to evaluate under

the appropriate legal standard whether the record evidence here

satisfies the reasonable-diligence test.10

We also note, and the government agrees, that Diaz "own[ed] 10

the thirty days" to decide whether she wanted to appeal and to file her appeal paperwork, and "all [those days] [were] likely to be essential." Irigoyen-Briones v. Holder,

(9th Cir. 2011).

- 20 - B. Extraordinary Circumstances

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,

). 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.

A party can satisfy the extraordinary-circumstances

requirement by showing that "reasonable expectations about an

event's occurrence [were] interrupted," Morales-Morales, 28

I. & N. Dec. at 717, and that the interruption was both

"extraordinary" and "beyond [the party's] control," Menominee

Indian Tribe, 577 U.S. at 257. "'[G]arden variety claim[s] of

excusable neglect,' such as a simple 'miscalculation' that leads

a lawyer to miss a filing deadline," are not enough. Holland,

(first quoting Irwin v. Dep't of Veterans Affs.,

(1990); and then quoting Lawrence v. Florida,

(2007)).

According to the BIA, "[o]ne example" of extraordinary

circumstances "is where a party uses a guaranteed delivery service,

and the service fails to fulfill its guarantee." Morales-Morales,

28 I. & N. Dec. at 717. But despite Diaz's claim that this is

- 21 - exactly what happened here, the BIA held that Diaz did not satisfy

the extraordinary-circumstances prong. 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.

Instead, Diaz claimed that she "use[d] a guaranteed

delivery service, and the service fail[ed] to fulfill its

guarantee." Morales-Morales, 28 I. & N. Dec. at 717. Although

the BIA cited to Morales-Morales, it did not apply the reasoning

of that decision to Diaz's case. See

(g)(1)-(2)

(indicating that published BIA decisions are "binding" and will

"serve as precedents in all proceedings involving the same issue

or issues"). Nor did the BIA offer any explanation as to why its

discussion in Morales-Morales, seemingly squarely on point here,

- 22 - would not compel a favorable outcome for Diaz. See Lafortune v.

Garland,

, 434 (1st Cir. 2024) (holding that an agency

is "expected to apply the same basic rules to all similarly

situated applicants" unless it explains why its departure is

reasonable (quotation marks and citation omitted)). We therefore

conclude that the BIA's extraordinary circumstances holding

amounted to an abuse of discretion by "inexplicably depart[ing]"

from "its own precedent[]." Adeyanju v. Garland,

, 51

(1st Cir. 2022). And we remand to the BIA to reconsider the

application of the extraordinary-circumstances test, as

articulated in Morales-Morales, to Diaz's case.

IV. CONCLUSION

We grant Diaz's petition for review. Applying the

ordinary remand rule, see INS v. Ventura,

(2002)

(per curiam), we vacate the denial of Diaz's motion to reconsider

and remand to the BIA for further proceedings consistent with this

opinion. Finally, we deny Diaz's motion to take judicial notice

of publicly available facts about FedEx's business hours as

unnecessary to the resolution of this appeal.

- 23 -