Background
Keeran Persaud, a native and citizen of Guyana, sought review of a Board of Immigration Appeals decision concerning his removal proceedings. His removal order had been entered pursuant to a stipulated request for removal and a waiver of hearing.
An immigration judge denied Persaud’s motion to reopen as untimely and denied his motion to reconsider. The BIA summarily dismissed his appeal from the reopening ruling because the appeal itself was untimely and affirmed the denial of reconsideration. Persaud then petitioned the Fifth Circuit for review.
The Court’s Holding
The Fifth Circuit denied the petition. Applying abuse-of-discretion review, it held that the BIA permissibly dismissed Persaud’s untimely appeal and was not required to consider equitable tolling because he had not presented that argument to the BIA. Because the government invoked exhaustion, the court declined to consider his new equitable-tolling argument. It also rejected his due-process challenge because reopening is discretionary relief.
The court further upheld the denial of reconsideration. It concluded that Fifth Circuit precedent foreclosed Persaud’s argument concerning the regulatory departure bar and that Kisor v. Wilkie did not displace controlling circuit law. The record also did not support his attacks on the stipulated removal order: his stipulation was not shown to be unknowing or involuntary, no cited authority required a separate hearing to test it, he was not removed in absentia, and the defective notice to appear did not invalidate the order on that theory. His remaining due-process arguments therefore failed as well.
Key Takeaways
- A noncitizen seeking equitable tolling must present that argument to the BIA; an unexhausted tolling theory will not be considered when the government raises exhaustion.
- The Fifth Circuit continued to apply its precedent governing the departure bar despite Persaud’s reliance on Kisor.
- A stipulated removal order was not invalid absent record support that the stipulation was unknowing or involuntary, and the applicable regulation did not require the separate judicial inquiry Persaud proposed.
Why It Matters
The decision underscores the procedural consequences of missing administrative deadlines and failing to preserve equitable-tolling arguments before the agency. It also reinforces the Fifth Circuit’s deferential review of rulings on reopening and reconsideration, both of which are discretionary forms of relief.
For challenges to stipulated removal orders, the opinion indicates that unsupported assertions about consent or defective notice will not suffice, particularly where the removal was not entered in absentia.