Boch-Saban v. Garland ( 2022 )

Case: 20-60540 Document: 00516273872 Page: 1 Date Filed: 04/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 8, 2022
No. 20-60540
Lyle W. Cayce
Clerk
Jose Santos Boch-Saban,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Before Southwick, Haynes, and Higginson, Circuit Judges.
Per Curiam:
I.
Petitioner Jose Santos Boch-Saban, a citizen of Guatemala, seeks
review of a Board of Immigration Appeals decision dismissing, as untimely,
his appeal of an immigration judge’s order denying, as time and number
barred, his motion to reopen and dismiss. We VACATE the Board’s
decision and REMAND the case for consideration in the first instance of
the issue of equitable tolling.
Case: 20-60540 Document: 00516273872 Page: 2 Date Filed: 04/08/2022
No. 20-60540
II.
In a notice to appear served on November 4, 2005, Jose Santos Boch-
Saban, a native and citizen of Guatemala, was charged with being removable
as an alien present in the United States without having been lawfully
admitted or paroled. When Boch-Saban failed to appear at his removal
hearing, he was ordered removed in absentia. Boch-Saban remained in the
United States and, in 2013, married a U.S. citizen. Boch-Saban’s wife
subsequently petitioned the Department of Homeland Security (“DHS”) for
a visa on his behalf as the spouse of a U.S. citizen, which was approved on
October 24, 2016.
In January 2017, Boch-Saban and DHS jointly moved to reopen and
dismiss his removal proceedings so that he could apply for an immigrant visa
based on the Form I-130 visa petition filed by his wife. An immigration judge
(“IJ”) denied the motion on March 21, 2017, finding that the “limited
record” provided by the parties failed to establish Boch-Saban’s eligibility for
relief. The IJ also declined to reopen the proceedings as a matter of discretion
or as an exercise of his sua sponte authority. Boch-Saban did not appeal the
denial of the motion to reopen.
Instead, in May 2017, Boch-Saban filed a second motion (unopposed,
although DHS did not join) to reopen his removal proceedings sua sponte so
that he could pursue an immigrant visa. On July 17, 2017, the IJ denied the
second motion as time and number barred. See 8 C.F.R. § 1003.23(b)(1)
(imposing a limit of one motion to reopen, which must be filed within ninety
days of entry of final removal order); § 1003.23(b)(4)(iv) (stating that time
and number bars do not apply to jointly filed motions to reopen). The IJ
further found the second motion to be time barred even if construed as a
motion to reconsider the denial of Boch-Saban’s first motion to reopen and
declined to equitably toll the filing deadline. The IJ again declined to exercise
2
Case: 20-60540 Document: 00516273872 Page: 3 Date Filed: 04/08/2022
No. 20-60540
his sua sponte authority to reopen the proceedings. Notice of the denial of
the second motion to reopen was mailed to Boch-Saban’s counsel on July 25,
2017.
On May 21, 2018, Boch-Saban, through counsel, filed a notice of
appeal with the Board of Immigration Appeals (“BIA”), in which he sought
review of the IJ’s March 2017 denial of his first motion to reopen. He also
filed a motion asking the BIA to accept his untimely appeal. Boch-Saban
argued that the thirty-day appeal filing deadline imposed by 8 C.F.R.
§ 1003.38(b) should be equitably tolled due to the ineffectiveness of his prior
counsel, who had deficiently advised him to file a second motion to reopen
rather than appeal the IJ’s March 2017 order. He additionally contended that
the IJ’s reasons for denying relief were legally erroneous. Lastly, Boch-Saban
requested that the BIA exercise its discretion to consider the appeal and
reopen the removal proceedings sua sponte notwithstanding the untimeliness
of the notice of appeal.
The BIA dismissed the appeal as untimely and denied Boch-Saban’s
request to accept the appeal notwithstanding its untimeliness, finding the
asserted bases insufficient for consideration by certification. See 8 C.F.R.
§ 1003.1(c) (version effective from February 27, 2018, to August 25, 2019,
during which time Boch-Saban filed his notice of appeal) (“The Board in its
discretion may review [a decision of an IJ] by certification . . . .”). Boch-
Saban timely petitioned this court for review of the BIA’s order. See 8 U.S.C.
§ 1252(b)(1).
III.
This court reviews the BIA’s factual findings for substantial evidence
and questions of law de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444
(5th Cir. 2001). Whether equitable tolling is available to apply is a question
3
Case: 20-60540 Document: 00516273872 Page: 4 Date Filed: 04/08/2022
No. 20-60540
of law that is reviewed de novo. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062,
1068 (2020).
IV.
While Boch-Saban did ask the BIA to exercise its discretion to certify
his out-of-time May 2018 notice of appeal, Boch-Saban concedes in his
briefing to this court that his current appeal does not “challenge the refusal
[of the BIA] to exercise discretion and certify the late appeal.” Boch-Saban
acknowledges this issue “does not raise a legal error, is unreviewable and
committed to agency discretion.” 1 In light of his concession, we conclude
Boch-Saban has waived any challenge to the BIA’s self-certification decision.
See Falek v. Gonzales, 475 F.3d 285, 291 n.5 (5th Cir. 2007).
V.
Boch-Saban further contends that the BIA failed to consider his
arguments for equitable tolling based on ineffective assistance of counsel and
addressed only its discretion to self-certify an otherwise untimely appeal. See
James v. Garland, 16 F.4th 320, 325 (1st Cir. 2021) (“[S]elf-certification and
equitable tolling are not quite the same.”). He argues that whether the thirty-
day appeal filing period of § 1003.38(b) is non-jurisdictional and is therefore
subject to equitable tolling is a distinct issue from whether self-certification
is appropriate.
Boch-Saban acknowledges the BIA’s holding in In re Liadov, 23 I. &
N. Dec. 990 (B.I.A. 2006), that the Board has no statutory or regulatory
1
Several cases from our sister circuits support this assertion. See Abdulla v. Att’y
Gen. of United States, 971 F.3d 409, 414 (3d Cir. 2020); Idrees v. Barr, 923 F.3d 539, 540
(9th Cir. 2019); Vela-Estrada v. Lynch, 817 F.3d 69, 71 (2d Cir. 2016); Mahamat v. Gonzales,
430 F.3d 1281, 1284 (10th Cir. 2005); Liadov v. Mukasey, 518 F.3d 1003, 1011 (8th Cir.
2008).
4
Case: 20-60540 Document: 00516273872 Page: 5 Date Filed: 04/08/2022
No. 20-60540
license to extend the time for filing a notice of appeal. Id. at 993. The
Government in its brief also averred that this is the current position of the
BIA: that it lacks jurisdiction over untimely appeals outside of the self-
certification process such that equitable tolling is not in play. But cf. James,
16 F.4th at 326 (a case where, unlike here, the Government declined to make
the argument that the BIA lacked jurisdiction to consider the equitable tolling
argument; the circuit remanded for consideration of whether the petitioner’s
“case presents circumstances warranting equitable tolling”).
Whatever the merits of Liadov were at the time it was issued, the
Supreme Court has since made quite clear that only statutes that are set forth
to be construed as jurisdictional are, in fact, jurisdictional. See, e.g., Hamer v.
Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 21 (2017) (“‘[M]andatory
and jurisdictional’ is erroneous and confounding terminology where, as here,
the relevant time prescription is absent from the U.S. Code.”). Among
others, the Second and Ninth Circuits have held, subsequent to Liadov, that
the thirty-day BIA appeal filing rule is non-jurisdictional and subject to
equitable tolling. See Attipoe v. Barr, 945 F.3d 76, 78–80 (2d Cir. 2019)
(“Liadov is at odds with precedent in this Circuit and in others, as well with
the Supreme Court’s repeated admonition not to treat claim-processing
rules—such as the filing deadline in 8 C.F.R. § 1003.38—as jurisdictional.”);
Irigoyen-Briones v. Holder, 644 F.3d 943, 946–48 (9th Cir. 2011). We agree
with, and adopt, these courts’ reasoning. The BIA has the jurisdiction to
hear the case if Boch-Saban establishes equitable tolling, an issue that the BIA
should address in the first instance. For these reasons, we remand this case
to the BIA to determine whether Boch-Saban proved entitlement to equitable
tolling.
5
Case: 20-60540 Document: 00516273872 Page: 6 Date Filed: 04/08/2022
No. 20-60540
VI.
Accordingly, we VACATE the BIA’s decision and REMAND the
case for consideration on the merits of the issue of equitable tolling.
6