James v. Garland

Decision Date25 October 2021
Docket NumberNo. 20-1666,20-1666
Parties Andrea Joy JAMES, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
CourtU.S. Court of Appeals — First Circuit

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.

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

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 8 U.S.C. § 1182(a)(6)(A)(i), and her controlled substance convictions, see id. §§ 1182(a)(2)(A)(i)(II), (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. 8 C.F.R. § 1003.38(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), 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, 85 Fed. Reg. 15,337 (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 ), 453 F. Supp. 3d 441, 445 (D. Mass. 2020) (quoting Comm. for Pub. Counsel Servs. v. Chief Just. of the Trial Ct., 484 Mass. 431, 142 N.E.3d 525, 531 (2020) ); Savino v. Souza (Savino II ), 459 F. Supp. 3d 317, 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, 2020 WL 1909091 (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 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 8 C.F.R. § 1003.38(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 8 C.F.R. § 1003.1(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, 23 I. & N. Dec. 990, 993 (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. § 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 8 C.F.R. § 1003.3(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 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, 522 F.3d 259, 264 (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 id. at 263–64 (considering petitioner's "objections to the BIA's untimeliness ruling"); Liadov v. Mukasey, 518 F.3d 1003, 1006–07 (8th Cir. 2008) (holding "that an alien whose appeal to the BIA 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, 350 F.3d 528, 532 (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...

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