If an Immigration Judge enters an order of removal, and if the immigrant 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, the immigrant usually loses her 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, 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”).
Late Appeals by Certification for “Exceptional Circumstances”:
The BIA has said it can accept late appeals if there are “exceptional circumstances,” by certification. Matter of Liadov, 23 I&N Dec. 990 (BIA 2006). Typically, if you mail your notice of appeal the day before it is due and the overnight delivery carrier does not deliver it on time, it will not be considered “exceptional.” 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 her deadline to file an appeal or an inadequate or involuntary appeal waiver.
Motions to Reopen:
Immigrants can usually file one motion to reopen, and it usually must be filed within 90 days (there are a number of exceptions and wrinkles that aren’t addressed here). 8 CFR 1003.23. If you are still within the 90 day deadline, and if there is a sufficient basis for filing a motion to reopen, this may be an alternative. Motions to reopen should be based on new evidence.
Stay of Removal:
Motions to reopen and late appeals do not stop your removal. Failing to appeal the IJ’s decision causes it to become final, triggering the mandatory removal provisions in INA 241. If you have already missed your appeal deadline, you should consult with your attorney about your options in seeking a stay of your removal.