If an Immigration Judge enters an order of removal, and if the noncitizen does not waive the right to appeal, that order can usually be appealed to the BIA. But the appeal must be received by the BIA in 30 days of the Judge’s decision. If it is not received on time, the immigrant usually loses their right to seek appellate review. If an appeal was not timely filed, there are several things to consider:
The BIA says it does not have jurisdiction to accept late appeals. However, some circuit courts have disagreed. Although the BIA doesn’t traditionally accept “equitable tolling” of the deadline as a possibility, some courts have said it should. See Khan v. U.S. Dep’t of Justice, 494 F.3d 255 (2d Cir. 2007) (“extraordinary or unique circumstances” may “excuse his untimely appeal”). In practice, just filing an appeal late with a request that it be accepted out of time will result in a rejection by the Board.
Late Appeals by Certification for “Exceptional Circumstances”:
The BIA has said it can accept late appeals if there are “exceptional circumstances,” and it does so by invoking its “certification” authority. Matter of Liadov, 23 I&N Dec. 990 (BIA 2006). However, the BIA construes the “exceptional circumstances” rule narrowly.
For example, if you mail your notice of appeal the day before it is due and the overnight delivery carrier does not deliver it on time, the BIA said in Liadov that it will not be considered “exceptional circumstances.” If you send it by “overnight” earlier, say 4 or 5 days before it is due, and it still doesn’t arrive on time, the BIA in Liadov said that might be “exceptional.”
Other possible “exceptional circumstances” could include failure by the IJ to advise the immigrant regarding their deadline to file an appeal, an inadequate or involuntary appeal waiver, or a serious circumstances like medical emergency that made filing it on time impossible.
Motions to Reissue the Decision:
Another possible strategy for filing a late appeal is to ask the Immigration Judge to reissue their decision. An immigration judge has discretion to reissue their decisions. See Jahjaga v. Attorney Gen. of U.S., 512 F.3d 80, 83 (3d Cir. 2008). If the judge agrees to reissue their decision, the 30-day deadline for filing an appeal should start over as of the date of the new decision.
Late Appeals Based on Ineffective Assistance of Counsel:
The BIA has provided another avenue for filing a late appeal if the attorney who was responsible for filing it on time has provided ineffective assistance of counsel. Under the BIA’s decision in Matter of Assaad, a late appeal can be filed if the respondent complies with the general standard for an ineffective assistance of counsel claim (which involves filing a bar complaint, notifying the prior attorney, etc.). However, normally the BIA will not allow this type of claim to be made by the attorney who messed up.
Stay of Removal:
Remember that normally motions to reopen and late appeals do not automatically trigger a “stay of removal.” Failing to appeal the IJ’s decision causes it to become final, triggering the mandatory removal provisions in INA 241. If the appeal deadline has passed, you should consult with your attorney about your options in seeking a stay of removal.