United States Court of Appeals For the First Circuit
No. 23-1576
GLEYSI IDALIA DIAZ-VALDEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Montecalvo, and Rikelman, Circuit Judges.
Kristian R. Meyer, with whom Kevin P. MacMurray and MacMurray & Associates were on brief, for petitioner.
Dana M. Camilleri, Senior Trial Attorney, with whom Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, and Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, were on brief, for respondent.
Mary Holper, with whom Cassandra Harris and Deepti Sailappan were on brief, for amici curiae Boston College Legal Services LAB Immigration Clinic, Boston University School of Law Immigrants' Rights and Human Trafficking Program, Central West Justice Center, Justice Center of Southeast Massachusetts, Massachusetts Law Reform Institute, Northeastern University School of Law Immigrant Justice Clinic, Political Asylum/Immigration Representation Project, Suffolk University Law School Immigrant Justice Clinic, Susanna Stern, Paul Schmidt, Philip Torrey, Sabrineh Ardalan, Jane Rocamora, Deborah Gonzales, Anna Welch, Sara Cressey, and Roni Amit.
November 22, 2024 RIKELMAN, Circuit Judge. After she was initially denied
asylum and other relief, Gleysi Idalia Diaz-Valdez ("Diaz") tried
to appeal to the Board of Immigration Appeals ("BIA"). She mailed
her Notice of Appeal to the proper BIA facility in Virginia using
Federal Express's ("FedEx") next-day delivery service,
anticipating that her filing would arrive on the morning of the
appeal deadline. But the BIA received Diaz's filing one day late,
which resulted in a summary dismissal of her appeal. Diaz then
requested that the BIA accept her late filing, in light of FedEx's
failure to deliver the appeal package on time. Construing her
request as a motion to reconsider its summary dismissal, the BIA
decided not to equitably toll the appeal deadline and denied the
motion.
In this petition for review, Diaz challenges the BIA's
denial of her request to equitably toll the appeal deadline. We
conclude that the BIA applied the incorrect legal standard,
overlooked certain evidence, and departed from its precedent in
determining that Diaz was not entitled to equitable tolling. Thus,
we grant Diaz's petition, vacate the BIA's order, and remand for
further proceedings.
I. BACKGROUND
At the age of nineteen, Diaz fled Guatemala, the country
of her birth and citizenship. She entered the United States near
El Paso, Texas, in May 2019, followed shortly by her spouse. Diaz
- 3 - was arrested just inside the border, served with a Notice to Appear
alleging that she was subject to removal, and released on bond two
months later. She then relocated to the greater Boston area to
stay with family.
Once in the Boston area, Diaz applied for asylum and
withholding of removal, claiming that she faced persecution in
Guatemala based on her political opinion and membership in a
particular social group. She also requested protection under the
Convention Against Torture. Her application explained that gang
members had murdered her father-in-law, twice attempted to kill
her husband, and, during one of those attempts, tried to run her
over with a car, requiring Diaz to seek medical attention for a
head injury. After a hearing, an immigration judge ("IJ") denied
her requests for relief on August 6, 2021.
This petition focuses on Diaz's unsuccessful effort to
appeal the IJ's order to the BIA. Noncitizens must file a Notice
of Appeal with the BIA "within 30 calendar days" of a decision by
an IJ. 8 C.F.R. § 1003.38(b); see also id. § 1003.3(a)(1). Under
BIA regulations, Diaz's thirty-day clock began to run on August 6,
the day the IJ mailed his written decision to her, even though
Diaz did not receive the decision until August 13. See id.
§ 1003.38(b). Taking into account a final weekend and holiday,
Diaz's deadline for filing the Notice of Appeal with the BIA was
- 4 - Tuesday, September 7, 2021, the day after Labor Day.1 The BIA
requires that a Notice of Appeal be sent to its facility in Falls
Church, Virginia, so the vast majority of individuals filing
appeals cannot personally deliver their papers to the BIA.2
At the heart of this case is the BIA's filing rule. The
BIA deems a Notice of Appeal filed on the date that it is received
by the BIA, not the date on which it is sent. 8 C.F.R.
§ 1003.38(c). Accordingly, under the BIA's receipt rule, most
individuals must account for the time it takes to mail their Notice
of Appeal to the BIA in Virginia. Given its filing rules, the BIA
advises noncitizens like Diaz to, "whenever possible, use
overnight delivery couriers (such as Federal Express, United
Parcel Service, DHL, etc.) to ensure timely receipt." See U.S.
Dep't of Justice, supra note 2.
1A Notice of Appeal from an IJ's ruling must "be filed directly with the Board of Immigration Appeals within 30 calendar days after the stating of an immigration judge's oral decision or the mailing or electronic notification of an immigration judge's written decision. If the final date for filing falls on a Saturday, Sunday, or legal holiday, this appeal time shall be extended to the next business day." 8 C.F.R. § 1003.38(b). In this case, the thirty-day deadline fell on September 5, 2021. Because September 5 was a Sunday and September 6 was Labor Day, the appeal deadline was September 7, 2021. 2See BIA Practice Manual: 3.1 - Delivery and Receipt, U.S. Dep't of Justice, https://www.justice.gov/eoir/reference- materials/bia/chapter-3/1 [https://perma.cc/JZ37-9878] (last visited Nov. 21, 2024).
- 5 - According to Diaz, she sent her Notice of Appeal and
supporting documents to the BIA on Saturday, September 4, 2021,
using FedEx's guaranteed next-day delivery service, expecting that
the appeal package would be delivered on Tuesday, September 7.
FedEx delivered the Notice of Appeal to the BIA on September 8,
however, and the BIA deemed it filed on that date. Because Diaz's
Notice of Appeal arrived one day after the filing deadline, the
BIA summarily dismissed Diaz's appeal as untimely, as permitted by
its regulations. See 8 C.F.R. § 1003.1(d)(2)(i)(G).
Diaz then moved to reconsider and requested that the BIA
treat her appeal as timely filed. Diaz's counsel explained:
During a meeting on the afternoon of September 3, 2021, [Diaz] notified Counsel of her intention to appeal the decision of the Immigration Judge.
On September 4, 2021, Counsel for [Diaz] sent the Notice of Appeal to the BIA through FedEx via overnight delivery service . . . .
FedEx, however, did not ship the package until September 7, 2021, due to the Labor Day Federal Holiday.
(Emphasis added.) With her motion to reconsider, Diaz submitted
a number of documents including a copy of her counsel's original
Notice of Entry of Appearance, the IJ's decision, the original
Notice of Appeal, the money order for the filing fee for the
original Notice of Appeal, and a FedEx-generated document tracking
the package's delivery progress (the "FedEx Tracker"). The record
- 6 - before the BIA also included the BIA's official receipt of Diaz's
filing, BIA-timestamped versions of the original Notice of Entry
of Appearance and of the original Notice of Appeal, and a scan of
the FedEx label accompanying Diaz's original appeal package.3
The record includes multiple pieces of evidence
documenting the chronology surrounding Diaz's appeal filing. For
example, on Friday, September 3, 2021, Diaz's counsel signed the
original Notice of Entry of Appearance and Notice of Appeal and
completed proofs of service of those filings on the U.S.
Immigration and Customs Enforcement office in Boston. The money
order for the appeal filing fee also indicates that it was issued
on Friday. The FedEx label for the entire appeal package was
generated at 3:42 p.m. on Saturday, September 4, according to a
timestamp on the label. Further, the FedEx Tracker notes "Deliver
Weekday, Saturday Pickup" under the "Special Handling Section."
But it also shows that FedEx shipped the package on Tuesday,
September 7, and delivered it at 10:10 a.m. on Wednesday, September
8. Finally, the BIA "acknowledge[d] receipt" of Diaz's appeal on
September 8. That said, the BIA's timestamps of each page of
3 The government has certified all of these documents as part of the administrative record. Thus, we proceed with the understanding that the BIA had all of these documents before it when it made its decision. See Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir. 2019) ("[T]he designation of the Administrative Record, like any established administrative procedure, is entitled to a presumption of administrative regularity." (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993))).
- 7 - Diaz's appeal package ranged from 4:33 a.m. to 4:35 a.m. on
September 8, which precedes FedEx's claimed delivery time by nearly
six hours.
The BIA denied Diaz's motion to reconsider, after
interpreting her motion as a request for equitable tolling of the
appeal deadline. The BIA reasoned:
The respondent claims that she diligently pursued her rights because she delivered her appeal to Federal Express 3 days before the filing deadline, but that the delivery service did not ship the package until September 7, 2021, because of the federal holiday on September 6, 2021. However, the record contains insufficient evidence that the respondent delivered the appeal to Federal Express on the claimed date. Moreover, the respondent's contention that the federal holiday is an exceptional circumstance for her untimely filing is unpersuasive because the holiday is not an unexpected event. See Matter of Morales-Morales, 28 I. & N. Dec. 714, 717 (BIA 2023). The respondent's reliance on a courier service, where she claims she delivered her appeal 3 days before the filing deadline over a holiday weekend, is an insufficient reason to grant the respondent's motion or to excuse the late filing. See id. at 717-18 . . . .
(Emphasis added.) Diaz timely petitioned this court for review of
the BIA's denial of her motion to reconsider.
II. STANDARD OF REVIEW
We have jurisdiction over the BIA's denial of Diaz's
motion to reconsider. See 8 U.S.C. § 1252(a)(1). Because Diaz
did not petition for review of the BIA's initial summary dismissal
- 8 - of her appeal, we lack jurisdiction over that prior decision. See
Hurtado v. Lynch, 810 F.3d 91, 93 (1st Cir. 2016).
The parties spar to some extent about our standard of
review. But our precedent is clear that we review the BIA's denial
of a motion to reconsider for abuse of discretion. See
Martinez-Lopez v. Holder, 704 F.3d 169, 171 (1st Cir. 2013). We
therefore uphold the BIA's decision unless it lacks "a 'rational
explanation, inexplicably depart[s] from established policies, or
rest[s] on an impermissible basis.'" Onwuamaegbu v. Gonzales, 470
F.3d 405, 407 (1st Cir. 2006) (quoting Zhang v. INS, 348 F.3d 289,
293 (1st Cir. 2003)).
The parties do agree that, even under the umbrella
abuse-of-discretion standard, we review the BIA's legal
conclusions de novo. These same principles apply to the BIA's
denial of a request for equitable tolling: We review the ultimate
decision for abuse of discretion and any underlying legal
conclusions de novo. See James v. Garland, 16 F.4th 320, 326 (1st
Cir. 2021); Tay-Chan v. Barr, 918 F.3d 209, 213 (1st Cir. 2019)
(explaining that we uphold the BIA's decision unless it "rests on
a material error of law or a manifestly arbitrary exercise of
judgment" (quotation marks and citation omitted)).
What the parties disagree on, at least in their briefs,
is whether the BIA's ruling here hinged on primarily legal or
factual analysis. The BIA's decision arguably could be read as
- 9 - refusing to credit the statements of Diaz's counsel about the
mailing of the Notice of Appeal, in which case the BIA's ruling
denying the motion would have been primarily factual. But during
oral argument, the government indicated that this was not how it
read the BIA's decision.4 Rather, the government contended, the
BIA ruled that there was insufficient record evidence to
demonstrate that Diaz had delivered the Notice of Appeal to FedEx
on September 4 and, accordingly, Diaz had not carried her burden
to show she was entitled to equitable tolling. As the government
framed the issue, the BIA concluded that counsel's statement did
not "provide enough information [to] know that FedEx had [the
package] in hand" on September 4.5
Whether a given set of facts meets the standard for
equitable tolling, however, is a legal question. See Niehoff v.
We also note that under the regulations currently in effect, 4
the BIA may not "engage in factfinding in the course of deciding cases," and the term "cases" includes motions to reconsider. 8 C.F.R. § 1003.1(d)(3)(iv); see also Efficient Case and Docket Management in Immigration Proceedings, 89 Fed. Reg. 46742, 46742, 46787 (May 29, 2024) (effective on July 29, 2024). One federal appellate court has suggested, without squarely deciding, that the BIA may engage in factfinding for the limited purpose of deciding equitable-tolling requests. See Williams v. Garland, 59 F.4th 620, 639 (4th Cir. 2023) (reviewing for substantial evidence a finding of fact by the BIA underlying its equitable-tolling determination). Because no agency factfinding is at issue in this case, we offer no view on the extent of the BIA's factfinding authority in deciding motions requesting equitable tolling. 5The government has never contended that FedEx's Saturday pick-up service was not operational on September 4, 2021.
- 10 - Maynard, 299 F.3d 41, 47 (1st Cir. 2002) (reviewing equitable
tolling decisions de novo where the decision on review does not
"hinge[] on factual determinations"); see also Williams v.
Garland, 59 F.4th 620, 639 (4th Cir. 2023) (calling this kind of
question "legal work" and applying de novo review (quoting Google
LLC v. Oracle Am., Inc., 593 U.S. 1, 24 (2021))). Indeed, the
United States Supreme Court has held that whether equitable tolling
is warranted on a particular set of "undisputed or established"
facts constitutes a "question of law" permitting federal court
jurisdiction (and thus federal court review of a BIA decision)
under 8 U.S.C. § 1252(a)(2)(D). Guerrero-Lasprilla v. Barr, 589
U.S. 221, 228 (2020). Of course, in so holding, the Supreme Court
necessarily determined that such equitable-tolling questions are
questions of law on the merits. See Nkomo v. Att'y Gen. of the
U.S., 986 F.3d 268, 272 (3rd Cir. 2021) (citing to Guerrero-
Lasprilla's holding as authority for de novo review of the BIA's
denial of equitable tolling). Thus, we review de novo the BIA's
conclusion that the record facts here, if assumed to be true, were
not enough to warrant equitable tolling. See Radkov v. Ashcroft,
375 F.3d 96, 98 (1st Cir. 2004); see also Williams, 59 F.4th at
633 (explaining that "courts must separate out the subsidiary
factual or legal or mixed factual and legal determinations to
understand why the Board denied the motion" and then "apply the
usual standards," including "de novo for law" (citing
- 11 - Guerrero-Lasprilla, 589 U.S. at 228)). And "[i]n the immigration
context, as elsewhere, an error of law on the [agency's] part
[amounts to] an abuse of discretion." Radkov, 375 F.3d at 98
(citing Rosario-Urdaz v. Rivera-Hernandez, 350 F.3d 219, 221 (1st
Cir. 2003)).
Finally, "[u]nder well-settled principles of
administrative law, we must accept or reject the agency's decision
based on the rationale the agency provides." James, 16 F.4th at
326 (quoting Bolieiro v. Holder, 731 F.3d 32, 38 (1st Cir. 2013)).
We review any rationale that "may reasonably be discerned" from
the agency's decision. Garland v. Ming Dai, 593 U.S. 357, 369
(2021) (quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys.,
Inc., 419 U.S. 281, 286 (1974)).
III. DISCUSSION
Diaz argues that the BIA committed legal error, and
therefore abused its discretion, when it determined that the record
evidence was insufficient to establish equitable tolling. She
also argues, alternatively, that the BIA acted arbitrarily and
capriciously by failing to apply a "mailbox rule" for the filing
of her paper documents.6 We agree with Diaz on her first point
and thus do not reach her second argument.
6 Diaz's arbitrary and capricious claim focuses on the BIA's different treatment of cases filed on or after February 11, 2022, which can benefit from the BIA's new electronic filing process
- 12 - The BIA recently issued a precedential opinion deciding
for the first time that its thirty-day appeal deadline is subject
to "an important exception" for "equitable tolling." Matter of
Morales-Morales, 28 I. & N. Dec. 714, 716 (BIA 2023). Equitable
tolling became available after the BIA held, in Morales-Morales,
that the appeal deadline is a claims-processing rule, not a
jurisdictional one. Id. at 716 (overruling Matter of Liadov, 23
I. & N. Dec. 990 (BIA 2006)).
In deciding whether to toll the thirty-day appeal
deadline, the BIA applies the two-part test set out in Holland v.
Florida, 560 U.S. 631 (2010). See Morales-Morales, 28 I. & N.
Dec. at 717. To satisfy that test, a party seeking equitable
tolling must establish that she "has been pursuing [her] rights
diligently" and that an "extraordinary circumstance" nevertheless
"prevented timely filing." Id. (citing Holland, 560 U.S. at 649).
The burden is on the party requesting equitable tolling to "clearly
establish" both diligence and extraordinary circumstances. Id.;
cf. Gyamfi v. Whitaker, 913 F.3d 168, 174 (1st Cir. 2019)
(explaining, in habeas context, that burden rests with "the party
seeking to toll the deadline" (citing Neves v. Holder, 613 F.3d
permitting same-day filing of legal documents, and cases filed before February 11, 2022, which continue to be subject to the previous paper-filing requirements. See Executive Office for Immigration Review Electronic Case Access and Filing, 86 Fed. Reg. 70708, 70708 (Dec. 13, 2021).
- 13 - 30, 36 (1st Cir. 2010))). A party who makes the requisite showing
on both prongs is "entitled to equitable tolling." James, 16 F.4th
at 325-26 (quoting Holland, 560 U.S. at 649); see also
Morales-Morales, 28 I. & N. Dec. at 717 ("The Board will accept
late-filed appeals where a party can establish equitable tolling
applies." (emphasis added)).
Further, because the BIA in Morales-Morales explicitly
imported the equitable-tolling rule from Holland into agency
practice, we assume without deciding that the agency's standard
and the judicial standard for equitable tolling are one and the
same. See Morales-Morales, 28 I. & N. Dec. at 717 ("[W]e will
apply the equitable tolling rule from Holland . . . ."). Thus, we
rely on federal court decisions applying the Holland standard, as
we have not been able to identify a single decision after
Morales-Morales, published or unpublished, in which the BIA
equitably tolled the thirty-day appeal deadline.7
A. Diligence
We begin with diligence. The BIA determined that the
evidence in the record was insufficient to establish that Diaz had
been pursuing her rights diligently. In our view, that conclusion
was legally incorrect for two reasons. First, the BIA applied the
wrong legal standard in evaluating the evidence before it when it
7Our search included a review of all commercially available databases.
- 14 - brushed aside counsel's unrebutted representation about when a
legal document was mailed. Second, the BIA overlooked other
documentary evidence that supported counsel's representation. We
thus vacate the BIA's insufficiency holding and remand to the BIA
to reevaluate Diaz's diligence showing under the correct legal
standard.
The diligence prong serves to filter out cases in which
"a litigant was responsible for [her] own delay." Menominee Indian
Tribe of Wisc. v. United States, 577 U.S. 250, 257 (2016). To
establish diligence, Diaz need not show that she acted with
"maximum feasible diligence." Holland, 560 U.S. at 653 (quotation
marks and citation omitted). Thus, she does not need to
demonstrate that she "left no stone unturned." Ramos-Martinez v.
United States, 638 F.3d 315, 324 (1st Cir. 2011) (citing Baldayaque
v. United States, 338 F.3d 145, 153 (2d Cir. 2003)). Instead, she
"must show that [s]he has exercised 'reasonable diligence' to
protect [her] own interests." Id. at 323-24 (quoting Holland, 560
U.S. at 653).
The BIA ruled against Diaz on diligence because it
concluded that there was "insufficient evidence" in the record
that Diaz "delivered the appeal to Federal Express on the claimed
date" -- September 4, 2021. In so ruling, the BIA determined that
the representation by Diaz's counsel that "[o]n September 4, 2021,
[he] sent the Notice of Appeal to the BIA through FedEx via
- 15 - overnight delivery service" was legally insufficient. The BIA's
decision also made no mention of the documents in the record that
supported counsel's representation, including the FedEx label and
the "Deliver Weekday, Saturday Pickup" instructions in the FedEx
Tracker.
The government attempts to shore up the BIA's conclusion
that this evidence was insufficient. It argues that the record
lacked information showing "where and when" Diaz "tendered the
package to FedEx," whether Diaz tendered the Notice of Appeal "to
FedEx at a time prior to final overnight delivery," or whether
FedEx "indicated that the document would be mailed overnight on
September 4, 2021." The government also casts doubt on the
probative value of the shipping label, arguing that it is "just"
a "print-out from FedEx submitted with the [Notice of Appeal]"8
that "simply indicates that a mailing label was created on
September 4, 2021."
We are unconvinced. In our view, the government's claim
that there was insufficient evidence to show that counsel
"delivered the appeal to Federal Express" on September 4 rests on
either speculation or a strained interpretation of counsel's
representation to the BIA. It repeats the agency's legal error of
We take judicial notice of the fact that many law firms and 8
governmental organizations have their own FedEx accounts and thus generate their own FedEx labels, which are also printouts.
- 16 - brushing aside the representation of Diaz's counsel. And it fails
to address that the agency overlooked other evidence, namely the
instructions in the Special Handling Section of the FedEx Tracker
and the FedEx label, for no obvious reason.
Importantly, an attorney's representation to a court
that they sent a filing on a certain date is generally accepted as
sufficient to establish the date of mailing. Courts around the
country routinely rely on such representations. See, e.g., United
States v. Rainey, 605 F.3d 581, 583 (8th Cir. 2010) (relying on
certification of service to establish the fact of mailing); Greene
v. WCI Holdings Corp., 136 F.3d 313, 315 (2d Cir. 1998) (affirming
the district court's reliance on an affidavit of service stating
that an envelope had been placed in a mailbox on a particular
date); United States v. Kennedy, 133 F.3d 53, 60 (D.C. Cir. 1998)
(reasoning, in a case where mailing was never received, that
"timely filing" of a statement of service "supports an inference
of regularity"); see also United States v. Wright, 238 F.3d 418
(4th Cir. 2000) (unpublished) (per curiam) (holding that a
"presumption that the information actually was mailed attaches to
[a] valid certificate of service" (citing Timmons v. United States,
194 F.2d 357, 361 (4th Cir. 1952))).
We see no reason why Diaz's counsel's representation
should be treated any differently. Like any member of the bar
appearing before a federal court or federal agency, Diaz's counsel
- 17 - was obligated to tell the truth in his representations to the BIA.
Further, by filing his Notice of Entry of Appearance, Diaz's
counsel promised the BIA that he would "comply with the EOIR Rules
of Professional Conduct in 8 C.F.R. § 1003.102." That section
subjects him to sanctions if he "[k]nowingly or with reckless
disregard makes a false statement of material fact or law, or
willfully misleads, misinforms . . . , or deceives any person
. . . , concerning any material and relevant matter relating to a
case, including knowingly or with reckless disregard offering
false evidence." 8 C.F.R. § 1003.102(c).9
The commonsense meaning of counsel's representation that
"[o]n September 4, 2021, [he] sent the Notice of Appeal to the BIA
through FedEx via overnight delivery service" is that counsel
actually delivered the package to FedEx on that date so that it
could be mailed on that date. Otherwise, counsel's statement that
he "sent" the appeal "to the BIA" "on September 4" would be untrue
or at least misleading, particularly in the context of a motion
requesting tolling of the appeal deadline. Thus, unless the
government is simply discrediting the statement of Diaz's counsel,
9 That section also prohibits false certification, frivolity, undue delay, and other attorney misconduct in immigration proceedings. See id. § 1003.102(i)-(j), (q). Those explicit grounds for sanctions, as well as other applicable rules and obligations governing attorney conduct, should serve to prevent abuse by attorneys who are seeking to establish the factual basis for equitable tolling.
- 18 - the statement is important record evidence supporting equitable
tolling.
What's more, the BIA did not discuss in its decision
either the FedEx label or the "Saturday Pickup" instructions in
the FedEx Tracker, which backed up the representation by Diaz's
counsel. That, too, was legal error. The BIA "cannot turn a blind
eye to salient facts," Sihotang v. Sessions, 900 F.3d 46, 51 (1st
Cir. 2018), and its failure to mention the label or "Saturday
Pickup" instructions "strongly suggests it 'completely overlooked
critical evidence,'" Aguilar-Escoto v. Garland, 59 F.4th 510, 516-
17 (1st Cir. 2023) (quoting Sihotang, 900 F.3d at 51). The
government, for its part, also overlooks the instructions.
Instead, it argues that the FedEx Tracker, which states that the
package was shipped on September 7 and delivered on September 8,
contradicted counsel's statements.
Again, we disagree with the government. The fact that
FedEx shipped the package on September 7 was not disputed; rather,
it was the entire point of the motion to reconsider. Diaz's
counsel requested equitable tolling because, he represented, FedEx
failed to ship the Notice of Appeal on time. To be sure, it was
Diaz's burden to clearly establish that she was entitled to
equitable tolling based on all the evidence, including the
background understanding that FedEx generally meets its delivery
guarantees. And the government would have an argument that the
- 19 - other evidence in the record was contradictory if, for example,
the FedEx label had indicated that it was created at 10 p.m. on
September 4, 2021, a time so late that delivery of the package to
FedEx on that day would appear highly improbable. But here the
label indicates that it was created before the close of business,
at 3:42 p.m.
For all these reasons, the BIA's conclusion that there
was insufficient evidence to establish a September 4 mailing was
based on legal error. The agency impermissibly disregarded the
representation of Diaz's counsel and failed to consider other
evidence supporting that representation. The government fails to
point to any case law or other legal authority (or anything in the
BIA's practice guidelines) indicating that the type of evidence
submitted here is insufficient to establish the basic fact that
Diaz tendered her appeal package to FedEx on September 4.
Accordingly, we vacate the BIA's insufficiency holding, see
Radkov, 375 F.3d at 98, and remand to the BIA to evaluate under
the appropriate legal standard whether the record evidence here
satisfies the reasonable-diligence test.10
We also note, and the government agrees, that Diaz "own[ed] 10
the thirty days" to decide whether she wanted to appeal and to file her appeal paperwork, and "all [those days] [were] likely to be essential." Irigoyen-Briones v. Holder, 644 F.3d 943, 950 (9th Cir. 2011).
- 20 - B. Extraordinary Circumstances
Even if Diaz were reasonably diligent in pursuing her
rights, she also must show "that some extraordinary circumstance
prevented timely filing" to establish that she is entitled to
equitable tolling. Morales-Morales, 28 I. & N. Dec. at 717 (citing
Holland, 560 U.S. at 649). We hold that the BIA abused its
discretion by inexplicably departing from its own binding
precedent in Morales-Morales in evaluating whether extraordinary
circumstances existed here.
A party can satisfy the extraordinary-circumstances
requirement by showing that "reasonable expectations about an
event's occurrence [were] interrupted," Morales-Morales, 28
I. & N. Dec. at 717, and that the interruption was both
"extraordinary" and "beyond [the party's] control," Menominee
Indian Tribe, 577 U.S. at 257. "'[G]arden variety claim[s] of
excusable neglect,' such as a simple 'miscalculation' that leads
a lawyer to miss a filing deadline," are not enough. Holland, 560
U.S. at 651-52 (first quoting Irwin v. Dep't of Veterans Affs.,
498 U.S. 89, 96 (1990); and then quoting Lawrence v. Florida, 549
U.S. 327, 336 (2007)).
According to the BIA, "[o]ne example" of extraordinary
circumstances "is where a party uses a guaranteed delivery service,
and the service fails to fulfill its guarantee." Morales-Morales,
28 I. & N. Dec. at 717. But despite Diaz's claim that this is
- 21 - exactly what happened here, the BIA held that Diaz did not satisfy
the extraordinary-circumstances prong. Specifically, the BIA
concluded that Diaz's "contention that the federal holiday [was]
an exceptional circumstance . . . [was] unpersuasive because the
holiday [was] not an unexpected event." It also stated that Diaz's
"reliance on a courier service" was an "insufficient reason to
grant the respondent's motion."
But the thrust of Diaz's motion -- that FedEx had
delivered her filing one day later than expected -- was clear.
Diaz explained that she sent the Notice of Appeal to the BIA on
September 4, 2021, using FedEx's next-day delivery service,
meaning that FedEx was supposed to deliver the package on September
7, 2021, the next business day, but failed to do so. The BIA's
apparent conclusion that Diaz was arguing that the holiday itself
was an extraordinary circumstance is not supported by the record.
Instead, Diaz claimed that she "use[d] a guaranteed
delivery service, and the service fail[ed] to fulfill its
guarantee." Morales-Morales, 28 I. & N. Dec. at 717. Although
the BIA cited to Morales-Morales, it did not apply the reasoning
of that decision to Diaz's case. See 8 C.F.R. § 1003.1(g)(1)-(2)
(indicating that published BIA decisions are "binding" and will
"serve as precedents in all proceedings involving the same issue
or issues"). Nor did the BIA offer any explanation as to why its
discussion in Morales-Morales, seemingly squarely on point here,
- 22 - would not compel a favorable outcome for Diaz. See Lafortune v.
Garland, 110 F.4th 426, 434 (1st Cir. 2024) (holding that an agency
is "expected to apply the same basic rules to all similarly
situated applicants" unless it explains why its departure is
reasonable (quotation marks and citation omitted)). We therefore
conclude that the BIA's extraordinary circumstances holding
amounted to an abuse of discretion by "inexplicably depart[ing]"
from "its own precedent[]." Adeyanju v. Garland, 27 F.4th 25, 51
(1st Cir. 2022). And we remand to the BIA to reconsider the
application of the extraordinary-circumstances test, as
articulated in Morales-Morales, to Diaz's case.
IV. CONCLUSION
We grant Diaz's petition for review. Applying the
ordinary remand rule, see INS v. Ventura, 537 U.S. 12, 16-17 (2002)
(per curiam), we vacate the denial of Diaz's motion to reconsider
and remand to the BIA for further proceedings consistent with this
opinion. Finally, we deny Diaz's motion to take judicial notice
of publicly available facts about FedEx's business hours as
unnecessary to the resolution of this appeal.
- 23 -