Summary
The Ninth Circuit granted Jesus Garcia Corrales’s petition for review of a Board of Immigration Appeals decision. The court held that Garcia’s filing should have been treated as a timely motion to reopen because it relied on evidence unavailable when the BIA dismissed his appeal, and remanded for the BIA to evaluate the motion under the applicable reopening standard.
Topics
Practice areas
Questions Presented
- Whether the BIA erred by construing Garcia's motion captioned as a motion to reopen as a motion to reconsider when the motion relied on evidence that was unavailable to the BIA when it dismissed his appeal.
- Whether Garcia's motion was timely under the ninety-day deadline applicable to motions to reopen.
- Whether remand was required for the BIA to evaluate Garcia's equitable-tolling request under the motion-to-reopen standard.
Holdings
- When a motion challenging dismissal of an untimely appeal is premised on evidence not previously before the BIA, the BIA must treat the motion as a motion to reopen rather than a motion to reconsider.
- Garcia's motion was timely because it was filed within ninety days of the BIA's dismissal order.
- The case must be remanded for the BIA to evaluate Garcia's motion under the standard applicable to a motion to reopen, including his equitable-tolling argument; if the BIA rejects the argument, it must provide specific and cogent reasons.
Key quotations
“Motions to reopen and reconsider “are two separate and distinct motions with different requirements.”” (5)
“The BIA is therefore “obligated, under its regulations and our case law” to treat motions presenting such facts as motions to reopen.” (7)
“We therefore remand for the BIA to evaluate Garcia’s motion under the standard applicable to a motion to reopen.” (8)
“We stress that, to facilitate future appellate review, the BIA should provide “specific and cogent reasons” if it rejects Garcia’s equitable tolling argument on remand.” (8)
Factual background
Garcia, a native and citizen of Mexico, entered the United States without inspection as a child and was placed in removal proceedings in 2020. An immigration judge found him removable and denied asylum, withholding of removal, and Convention Against Torture relief. Garcia's counsel mailed a notice of appeal to the BIA by certified mail on February 5, 2024, eleven calendar days before the appeal deadline, but the notice was not delivered until March 18, 2024. After the BIA dismissed the appeal as untimely, Garcia submitted a motion to reopen supported by counsel's statements, USPS tracking information, and evidence concerning ordinary certified-mail delivery times.
Procedural history
An immigration judge found Garcia removable and denied his applications for asylum, withholding of removal, and Convention Against Torture relief. Garcia's notice of appeal to the BIA was mailed before the deadline but delivered forty-two days later, and the BIA dismissed the appeal as untimely. Garcia then filed a motion captioned as a motion to reopen, supported by mailing and tracking evidence and seeking equitable tolling; the BIA construed it as a motion to reconsider and denied it as untimely and alternatively insufficient on the merits. The Ninth Circuit granted the petition for review and remanded.
Remand instructions
The BIA must evaluate Garcia's motion under the standard applicable to a motion to reopen. If it rejects the equitable-tolling argument, it must provide specific and cogent reasons addressing the forty-two-day certified-mail delay and whether Garcia demonstrated due diligence in mailing the notice of appeal.