Attipoe v. Barr

• Decision Date: 19 December 2019
• Docket Number: Docket No. 18-204,August Term, 2018
• Citation: 945 F.3d 76
• Parties: Emeli Kwasi ATTIPOE, aka Emeli Attipoe, aka Andrew C. Mitchell, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

945 F.3d 76

Emeli Kwasi ATTIPOE, aka Emeli Attipoe, aka Andrew C. Mitchell, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

Docket No. 18-204

August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: February 6, 2019

Decided: December 19, 2019

MATTHEW J. MOFFA, Perkins Coie LLP (Gene W. Lee, on the brief), New York, NY, for Petitioner Emeli Kwasi Attipoe.

BRETT F. KINNEY, U.S. Department of Justice, Civil Division, Office of Immigration Litigation (Joseph J. Hunt, Assistant Attorney General, Kohsei Ugumori, Senior Litigation Counsel, on the brief), Washington, D.C., for Respondent William P. Barr.

TRINA REALMUTO, American Immigration Council (Kristin Macleod-Ball, on the brief), Brookline, MA, amicus curiae in support of Petitioner.

Before: POOLER, LOHIER, and CARNEY, Circuit Judges.

POOLER, Circuit Judge:

Petition for review of the January 18, 2018 decision of the Board of Immigration Appeals ("BIA") refusing to accept Emeli Attipoe’s untimely appeal of an Immigration Judge’s ("IJ") July 8, 2016 order of removal to Ghana. The BIA erred in refusing to consider whether the argument that the appeal deadline, which is nonjurisdictional, is subject to an equitable tolling exception. We find that the appeal deadline is a claim-processing rule amenable to equitable tolling, and we remand to the BIA to develop standards for equitable tolling and to determine whether Attipoe qualifies for equitable tolling under those standards.

Petition granted.

BACKGROUND

Attipoe, a native and citizen of Ghana, entered the United States in 1998 as a lawful permanent resident. In April 2015, Attipoe pled guilty in Connecticut to attempted first-degree larceny in violation of Connecticut General Statutes ("CGS") §§ 53a-49 and 53a-122. He was initially sentenced to three years’ imprisonment (execution suspended) and three years’ probation, but the sentence was later modified to simply impose a $1,950 fine.

In August 2015, the Department of Homeland Security ("DHS") placed Attipoe in removal proceedings based on his Connecticut conviction. DHS later filed amended charges of removability, ultimately charging Attipoe as removable for his convictions of two or more crimes involving moral turpitude based on both his Connecticut conviction and a 2013 Texas conviction for theft, an aggravated felony involving fraud or deceit in which the loss exceeded $10,000, and an attempt to commit an aggravated felony. In July 2016, following a hearing, the IJ ordered Attipoe removed.

As relevant here, the IJ concluded that Attipoe’s attempted larceny conviction under CGS §§ 53a-49 and 53a-122 was an aggravated felony, rendering Attipoe statutorily ineligible for cancellation of removal. In analyzing the issue, the IJ employed a modified categorical approach, delved into the disposition and plea minutes. The IJ determined that Attipoe was convicted of attempting to obtain property in excess of $10,000 through false pretenses, an aggravated felony under two subsections of 8 U.S.C. § 1101 : (a)(43)(M)(i), fraud with loss to victim in excess of $10,000; (U), attempt to commit aggravated felony. The IJ’s decision did not inform Attipoe of his right to appeal or the deadline for doing so, and the cover letter accompanying the decision did not check off the option stating that the IJ’s "decision is final unless an appeal is filed with the Board of Immigration Appeals within 30 calendar dates of the date of the mailing of this written decision." App’x at 433.

Attipoe received a copy of the IJ’s decision from his lawyer, Saul Brown, roughly a week after it issued. Attipoe then called Brown, who told Attipoe he would charge between $2,000 and $3,000 to handle Attipoe’s appeal. Unable to afford Brown’s fee, Attipoe asked around at the detention center for attorney referrals, and someone suggested Michael Reeves. Other detainees vouched for Reeves, and Attipoe contacted him a day or two after speaking with Brown. Attipoe entered into an agreement for Reeves to file a notice of appeal and habeas corpus petition for $500, and Attipoe’s sister paid Reeves on July 19, 2016. Despite numerous attempts to reach Reeves and confirm the filing of the notice of appeal, neither Attipoe nor his family ever heard from Reeves following payment.

Attipoe called the BIA shortly before the August 8, 2016 filing deadline to confirm that his appeal was pending, but the BIA clerk told him that a notice of appeal had not been filed. Hoping that Reeves had sent in the appeal, and that it had simply not yet been filed, on August 10, 2016, Attipoe filed a request for stay of removal with the BIA, stating he had an appeal pending. Attipoe also filed a "Request for Emergency Extension" with the BIA on August 19, 2016. On August 25, 2016, Attipoe received the BIA’s denial of his stay request, which the BIA explained was denied because Attipoe did not have an appeal pending. The BIA also rejected Attipoe’s "Request for an Emergency Extension," stating "the regulations set strict deadlines for the filing of an appeal, and the Board does not have the authority to extend the time in which to file a Notice of Appeal." App’x at 64. But the BIA also enclosed the necessary forms for Attipoe to file for an extension of the time to appeal.

Attipoe began actively recruiting new counsel, reaching out to immigration attorneys and law clinics, mailing out photocopies of his file, and making telephone calls. Unable to find representation, and acting pro se, Attipoe mailed in his appeal form, an application for a fee waiver, a "Motion to Accept the Notice of Appeal," and an "Emergency Motion for Stay of Removal" on October 21, 2016. He mailed an additional packet of the same material to the BIA via two-day priority mail on October 24, 2016. The BIA received Attipoe’s appeal notice on October 27, 2016.

In his pro se motion to accept his late-filed appeal, Attipoe argued that the BIA should toll the deadline because it was not jurisdictional; that the attorney he hired to bring his appeal failed to do so; that the equities weighed in Attipoe’s favor; and that he was detained, limiting the risk of flight. DHS moved to dismiss the appeal, arguing that there were no exceptional circumstances that warranted the BIA exercising its discretionary authority to accept the appeal via certification. Shortly thereafter, Attipoe obtained counsel, who filed a new notice of appeal, a motion to accept the untimely appeal, and a request for an emergency stay of removal. Attipoe’s counseled brief reiterated the arguments in support of equitable tolling and argued that even if his appeal was untimely, the BIA should grant reopening sua sponte given that the IJ’s determination of ineligibility for cancellation of removal was erroneous.

In January 2018, the BIA dismissed Attipoe’s appeal as untimely. The BIA found no "exceptional circumstances meriting acceptance of the respondent’s untimely appeal on certification." App’x at 3. The BIA "acknowledge[d] [Attipoe’s] arguments on appeal alleging difficulties with the individual hired to file his appeal," but found that Attipoe failed to comply with the necessary requirements to lodge an ineffective assistance of counsel claim under Matter of Lozada , 19 I. & N. Dec. 637 (BIA 1988). App’x at 4. The BIA noted that Attipoe received the IJ’s decision and notice of the option to appeal, and it found that his subsequent filing difficulties did not constitute exceptional circumstances given that he filed his appeal more than two months late. Id .

One panel member dissented, stating that Attipoe "demonstrated exceptional circumstances warranting acceptance of his late appeal by certification pursuant to 8 C.F.R. § 1003.1(c)" without explaining why. App’x at 5. On the merits, the dissent argued that the case should be remanded because the IJ wrongly found Attipoe’s conviction to be an aggravated felony. This appeal followed.

DISCUSSION

A noncitizen has the right to appeal an order of removal to the BIA, but by regulation the notice of appeal "shall be filed ... within 30 calendar days" of "the mailing of an [IJ]’s written decision." 8 C.F.R. §§ 1003.1(b)(3), 1003.38(a), (b). Attipoe’s notice of appeal was untimely. Nonetheless, we find that the BIA committed legal error in concluding that equitable tolling does not apply to the BIA’s appeals regulation, 8 C.F.R. § 1003.38(b).

The government argues that the BIA may accept late-filed appeals only via its self-certification process, 8 C.F.R. § 1003.1(c), and that the decision to accept such appeals is entirely discretionary, divesting this Court of jurisdiction to review such decisions. We agree that, to the extent Attipoe challenges the BIA’s decision not to certify his appeal pursuant to 8 C.F.R. § 1003.1(c), we lack jurisdiction to consider an appeal from that entirely discretionary decision. Vela-Estrada v. Lynch , 817 F.3d 69, 70-71 (2d Cir. 2016). However, the gravamen of Attipoe’s appeal is that the BIA erred in not considering his argument that, because the filing deadline under 8 C.F.R. § 1003.38(b) is nonjurisdictional, it is subject to equitable tolling. We review the BIA’s legal conclusions de novo. Banegas Gomez v. Barr , 922 F.3d 101, 106 (2d Cir. 2019).

The government argues that the BIA’s failure to consider whether the filing deadline was subject to equitable tolling is irrelevant because the BIA previously held that neither the Immigration and Nationality Act nor the regulations provide the BIA with the authority to extend the 30-day deadline for filing an appeal unless the BIA invokes its self-certification authority. Matter of Liadov , 23 I. & N. Dec. 990, 993 (BIA 2006). The government further argues that we are required to defer to its interpretation of its own authority and regulations pursuant to Auer v. Robbins , 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (agency interpretations of their own regulations are "controlling unless ... plainly erroneous or inconsistent with the regulation...