Background
Jesus Ruben Garcia Corrales, a Mexican national who entered the United States without inspection as a child, was placed in removal proceedings in 2020. He applied for asylum, withholding of removal, and relief under the Convention Against Torture, but an immigration judge found him removable and denied all relief. Garcia had until February 15, 2024 to appeal to the Board of Immigration Appeals (BIA).
On February 5, 2024—eleven calendar days before the deadline—Garcia’s counsel sent a notice of appeal to the BIA by USPS certified mail. The envelope was confirmed dispatched from Tempe, Arizona that day, but was not delivered to the BIA in Falls Church, Virginia until March 18, 2024, a forty-two day transit. The BIA dismissed the appeal as untimely on April 30, 2024, because it was not received within the thirty-day filing deadline.
On July 18, 2024, Garcia filed a document plainly captioned as a “motion to reopen,” supported by USPS tracking records and counsel’s avowals, arguing that the extraordinary mail delay constituted an exceptional circumstance warranting equitable tolling of the appeal deadline. The BIA construed the filing as a motion to reconsider—which carries a thirty-day filing deadline—and denied it as untimely. The BIA also ruled alternatively that the motion failed on the merits because it did not allege any error of fact or law in the prior decision, the standard applicable to motions to reconsider. Garcia petitioned the Ninth Circuit for review.
The Court’s Holding
Writing for a unanimous panel, Judge Hurwitz held that the BIA was obligated to treat Garcia’s filing as a motion to reopen rather than a motion to reconsider. The two types of motions are legally distinct: a motion to reconsider challenges errors in a prior BIA decision using the same record, while a motion to reopen is premised on new evidence not previously before the BIA. Garcia’s motion rested entirely on mail-tracking evidence and counsel’s avowals that did not exist at the time of the dismissal order—classic grounds for a motion to reopen. The court noted that facts regarding an untimely appeal are “not as a practical matter discoverable” before the dismissal, and that BIA regulations and Ninth Circuit precedent alike require such motions to be treated as motions to reopen.
Because motions to reopen carry a ninety-day filing deadline rather than thirty days, Garcia’s July 18, 2024 filing was timely—made within ninety days of the BIA’s April 30, 2024 dismissal order. The court rejected the government’s reliance on Matter of Mladineo and Matter of Lopez, finding neither case establishes that challenges to a dismissal for untimeliness must be brought as motions to reconsider. The court also dispatched the government’s invocation of the “place-of-filing” rule as inapposite, noting no one disputed that the motion was correctly filed with the BIA.
The panel granted the petition for review and remanded for the BIA to evaluate Garcia’s motion under the proper motion-to-reopen standard, including his equitable tolling argument. The court instructed that, if the BIA rejects equitable tolling on remand, it must provide “specific and cogent reasons” explaining why a forty-two-day certified mail delay does not qualify as an extraordinary circumstance and why mailing eleven days before the deadline demonstrates insufficient diligence—rather than merely restating the legal standard.
Key Takeaways
- A motion challenging a BIA dismissal for untimeliness must be treated as a motion to reopen—not a motion to reconsider—when it is premised on evidence (such as mail-tracking records) that was not before the BIA at the time of dismissal.
- The ninety-day deadline for motions to reopen governs such filings, meaning petitioners have three times as long to seek relief as they would under the thirty-day reconsideration deadline.
- Neither Matter of Mladineo nor Matter of Lopez requires that challenges to a BIA untimeliness finding be channeled exclusively through a motion to reconsider.
- On remand, the BIA must provide a reasoned, case-specific explanation if it denies equitable tolling—a conclusory recitation of the standard is insufficient for meaningful appellate review.
Why It Matters
This decision reinforces that the BIA cannot recharacterize a petitioner’s motion to reopen as a motion to reconsider merely because the underlying challenge involves the timeliness of a prior appeal. Doing so effectively collapses the ninety-day window for reopening into the thirty-day reconsideration period, potentially foreclosing relief for petitioners whose only available evidence—such as postal records—does not materialize until after a dismissal order has issued.
The ruling also carries practical significance for immigration practitioners who rely on USPS certified mail to file notices of appeal. The court’s direction to the BIA to explain, on remand, why an unexplained forty-two-day certified mail delay might not constitute an extraordinary circumstance signals skepticism about a finding that diligent counsel who mailed eleven days early should bear the consequences of a postal system failure.