Background
Grecia Josefina Perez Rojas, a Venezuelan citizen, entered the United States without inspection or valid entry documents in December 2023. An immigration judge denied her applications for asylum, withholding of removal, and Convention Against Torture protection and ordered her removed to Venezuela.
Perez Rojas timely submitted a notice of appeal, but the Board of Immigration Appeals rejected it because it lacked her signature and a certificate of service. She filed a corrected notice after the 15-day cure period, explaining that she could not access the mailbox receiving the rejection notice and that she had been providing around-the-clock care for her terminally ill infant, who remained in a pediatric intensive care unit. The BIA summarily dismissed the appeal as untimely, addressing the mailbox issue but not the child’s illness and hospitalization.
The Court’s Holding
The Fifth Circuit granted Perez Rojas’s petition for review and remanded. It held that the BIA abused its discretion by failing to address her evidence and argument that her child’s terminal cancer, extended hospitalization, and need for continuous care constituted extraordinary circumstances warranting equitable tolling.
The court did not decide whether equitable tolling ultimately applies. Because the administrative record was insufficient for that determination, the BIA must further develop the facts and decide whether the circumstances were beyond Perez Rojas’s control and prevented timely filing. The court also declined to review her due-process claim concerning the immigration-judge proceedings because the BIA had not adopted the immigration judge’s reasoning.
Key Takeaways
- The BIA must consider the individual facts and circumstances supporting an equitable-tolling request.
- Ignoring evidence that a petitioner was caring for a terminally ill, hospitalized child constitutes an abuse of discretion.
- The decision does not establish that the child’s illness required tolling; the BIA must decide that question on remand.
Why It Matters
The decision reinforces that equitable tolling in immigration appeals requires a fact-specific inquiry rather than a categorical rejection. When a petitioner presents documented circumstances that allegedly prevented timely filing, the BIA must meaningfully address them.
For practitioners, the opinion underscores the importance of documenting both reasonable diligence and the causal connection between an extraordinary circumstance and a missed deadline.