United States Court of Appeals For the First Circuit
No. 24-1921
ELDI LÓPEZ-GÓMEZ; M.S.L,
Petitioners,
v.
PAMELA J. BONDI, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Rikelman and Aframe, Circuit Judges, and Elliott, District Judge.
Todd C. Pomerleau, with whom Jeffrey B. Rubin and Rubin Pomerleau PC were on brief, for petitioners.
Taryn L. Arbeiter, with whom Yaakov M. Roth, Acting Assistant Attorney General, and Leslie McKay, Assistant Director, were on brief, for respondent.
September 22, 2025
Of the District of New Hampshire, sitting by designation. AFRAME, Circuit Judge. In this petition for review of
a removal order, we consider whether the Board of Immigration
Appeals ("BIA") abused its discretion by declining to consider the
late-filed brief of petitioner Eldi López-Gómez ("López"), a
citizen of Guatemala. We conclude that the BIA's lack of
explanation after the petitioner presented a plausible reason for
the brief's untimeliness warrants a remand.
The relevant facts are as follows. After an immigration
judge denied López's applications for asylum, withholding of
removal, and protection under the Convention Against Torture,
López filed a form notice of appeal with the BIA.1 On that form,
she indicated her intention to file a brief in support of her
appeal and listed several grounds that she intended to raise.
In due course, the BIA issued a briefing order
establishing June 3, 2024, as the filing date for López's brief.
López, through counsel, filed her brief on the due date using the
agency's electronic filing system; inadvertently, however, she
made a technological error by filing the brief with the immigration
court instead of the BIA. The immigration court rejected López's
brief three weeks later, noting that it had been filed in the wrong
1 López's minor daughter was listed as a derivative beneficiary of her asylum application. See Cabrera v. Garland, 100 F.4th 312, 315 n.1 (1st Cir. 2024). Our disposition of López's petition necessarily resolves the derivative asylum application, and so we do not separately discuss it. See id.
- 2 - venue. López's counsel refiled her brief with the BIA on the same
day.
Three days later, on June 24, 2024, the BIA rejected
López's brief as untimely and noted that López should file a motion
for consideration of a late-filed brief. López's counsel complied,
filing a motion later that day which explained that the "brief
[had been] timely filed" using the electronic filing system, but
"due to a technical error" by counsel, had been submitted to the
immigration court rather than the BIA. López requested that the
BIA accept the brief despite the error.
On June 28, 2024, without the government having filed an
opposition, the BIA issued a "Notice of Action" on López's motion.
The unsigned notice, which the government describes as a "clerk-
issued procedural order[]," stated, in full, as follows:
The request to accept [the] late filed brief is denied. The rationale stated by the respondent is insufficient to accept the late filed brief. The request does not warrant the Board of Immigration Appeals' exercise of discretion. 8 C.F.R. § 1003.3(c)(1). The brief is returned. No additional motions to accept the late filed brief will be considered. No motion to reconsider this denial will be considered.
Thereafter, a one-member panel of the BIA dismissed
López's appeal, adopting and affirming the immigration judge's
decision and stating that the grounds for appeal that López had
listed in the notice-of-appeal form were "waived . . . because
- 3 - they were not renewed or further developed in any brief or separate
statement filed by the respondents." The BIA stated that López
had neither "file[d] such brief or statement, [n]or reasonably
explained the failure to do so, within the time set for filing."
No further elaboration was offered.
López timely petitioned this Court for review of the
BIA's dismissal of her appeal, challenging, among other things,
the denial of her motion to consider the late-filed brief as
contrary to the agency's regulations. Whether the BIA followed
its own regulations is a "question[] of law" which we have
jurisdiction to review. 8 U.S.C. § 1252(a)(1), (a)(2)(D); see
Lumataw v. Holder, 582 F.3d 78, 85 (1st Cir. 2009); see also
Adeyanju v. Garland, 27 F.4th 25, 36-37, 51 (1st Cir. 2022). The
principal regulation at issue is section 1003.3(c)(1), which
permits the BIA, "[i]n its discretion," to "consider a brief that
has been filed out of time." 8 C.F.R. § 1003.3(c)(1). Where a
regulation affords the BIA discretion, we review only for whether
the BIA abused that discretion. See Mazariegos v. Lynch, 790 F.3d
280, 285, 287 (1st Cir. 2015); see also Zetino v. Holder, 622 F.3d
1007, 1012–13 (9th Cir. 2010); Oluwajana v. Garland, 33 F.4th 411,
415–16 (7th Cir. 2022).
For us to "provide intelligent review," however, we must
be able to discern why the agency made the decision that it did.
Tillery v. Lynch, 821 F.3d 182, 185 (1st Cir. 2016). Thus,
- 4 - "[w]hile the BIA need not spell out every last detail of its
reasoning where the logical underpinnings are clear from the
record, it is obligated to offer more explanation when the record
suggests strong arguments . . . that the agency has not
considered." Rivera-Medrano v. Garland, 47 F.4th 29, 39 (1st Cir.
2022) (citation modified). If "the BIA's explanation is too thin
to allow us to evaluate the claims of error, we may find an abuse
of discretion and remand to the BIA for further explanation."
Adeyanju, 27 F.4th at 51; cf. Camacho v. Whitaker, 910 F.3d 378,
381 (8th Cir. 2018) (explaining the BIA's obligation to "consider
the issues raised and announce its decision in terms sufficient to
enable a reviewing court to perceive that it has heard and thought
and not merely reacted." (quoting Camarillo-Jose v. Holder, 676
F.3d 1140, 1143 (8th Cir. 2012))).
A remand for the BIA to further explain -- and, if
appropriate, reconsider -- its decision not to consider López's
brief is necessary here. Although the Notice of Action recognized
the BIA's discretion to grant López's motion, it provided no
explanation for why López's motion did "not warrant the [BIA's]
exercise of [that] discretion." And the decision dismissing
López's appeal did not mention López's untimely attempt to file
her brief and likewise offered no rationale except for the
Free access — add to your briefcase to read the full text and ask questions with AI
United States Court of Appeals For the First Circuit
No. 24-1921
ELDI LÓPEZ-GÓMEZ; M.S.L,
Petitioners,
v.
PAMELA J. BONDI, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Rikelman and Aframe, Circuit Judges, and Elliott, District Judge.
Todd C. Pomerleau, with whom Jeffrey B. Rubin and Rubin Pomerleau PC were on brief, for petitioners.
Taryn L. Arbeiter, with whom Yaakov M. Roth, Acting Assistant Attorney General, and Leslie McKay, Assistant Director, were on brief, for respondent.
September 22, 2025
Of the District of New Hampshire, sitting by designation. AFRAME, Circuit Judge. In this petition for review of
a removal order, we consider whether the Board of Immigration
Appeals ("BIA") abused its discretion by declining to consider the
late-filed brief of petitioner Eldi López-Gómez ("López"), a
citizen of Guatemala. We conclude that the BIA's lack of
explanation after the petitioner presented a plausible reason for
the brief's untimeliness warrants a remand.
The relevant facts are as follows. After an immigration
judge denied López's applications for asylum, withholding of
removal, and protection under the Convention Against Torture,
López filed a form notice of appeal with the BIA.1 On that form,
she indicated her intention to file a brief in support of her
appeal and listed several grounds that she intended to raise.
In due course, the BIA issued a briefing order
establishing June 3, 2024, as the filing date for López's brief.
López, through counsel, filed her brief on the due date using the
agency's electronic filing system; inadvertently, however, she
made a technological error by filing the brief with the immigration
court instead of the BIA. The immigration court rejected López's
brief three weeks later, noting that it had been filed in the wrong
1 López's minor daughter was listed as a derivative beneficiary of her asylum application. See Cabrera v. Garland, 100 F.4th 312, 315 n.1 (1st Cir. 2024). Our disposition of López's petition necessarily resolves the derivative asylum application, and so we do not separately discuss it. See id.
- 2 - venue. López's counsel refiled her brief with the BIA on the same
day.
Three days later, on June 24, 2024, the BIA rejected
López's brief as untimely and noted that López should file a motion
for consideration of a late-filed brief. López's counsel complied,
filing a motion later that day which explained that the "brief
[had been] timely filed" using the electronic filing system, but
"due to a technical error" by counsel, had been submitted to the
immigration court rather than the BIA. López requested that the
BIA accept the brief despite the error.
On June 28, 2024, without the government having filed an
opposition, the BIA issued a "Notice of Action" on López's motion.
The unsigned notice, which the government describes as a "clerk-
issued procedural order[]," stated, in full, as follows:
The request to accept [the] late filed brief is denied. The rationale stated by the respondent is insufficient to accept the late filed brief. The request does not warrant the Board of Immigration Appeals' exercise of discretion. 8 C.F.R. § 1003.3(c)(1). The brief is returned. No additional motions to accept the late filed brief will be considered. No motion to reconsider this denial will be considered.
Thereafter, a one-member panel of the BIA dismissed
López's appeal, adopting and affirming the immigration judge's
decision and stating that the grounds for appeal that López had
listed in the notice-of-appeal form were "waived . . . because
- 3 - they were not renewed or further developed in any brief or separate
statement filed by the respondents." The BIA stated that López
had neither "file[d] such brief or statement, [n]or reasonably
explained the failure to do so, within the time set for filing."
No further elaboration was offered.
López timely petitioned this Court for review of the
BIA's dismissal of her appeal, challenging, among other things,
the denial of her motion to consider the late-filed brief as
contrary to the agency's regulations. Whether the BIA followed
its own regulations is a "question[] of law" which we have
jurisdiction to review. 8 U.S.C. § 1252(a)(1), (a)(2)(D); see
Lumataw v. Holder, 582 F.3d 78, 85 (1st Cir. 2009); see also
Adeyanju v. Garland, 27 F.4th 25, 36-37, 51 (1st Cir. 2022). The
principal regulation at issue is section 1003.3(c)(1), which
permits the BIA, "[i]n its discretion," to "consider a brief that
has been filed out of time." 8 C.F.R. § 1003.3(c)(1). Where a
regulation affords the BIA discretion, we review only for whether
the BIA abused that discretion. See Mazariegos v. Lynch, 790 F.3d
280, 285, 287 (1st Cir. 2015); see also Zetino v. Holder, 622 F.3d
1007, 1012–13 (9th Cir. 2010); Oluwajana v. Garland, 33 F.4th 411,
415–16 (7th Cir. 2022).
For us to "provide intelligent review," however, we must
be able to discern why the agency made the decision that it did.
Tillery v. Lynch, 821 F.3d 182, 185 (1st Cir. 2016). Thus,
- 4 - "[w]hile the BIA need not spell out every last detail of its
reasoning where the logical underpinnings are clear from the
record, it is obligated to offer more explanation when the record
suggests strong arguments . . . that the agency has not
considered." Rivera-Medrano v. Garland, 47 F.4th 29, 39 (1st Cir.
2022) (citation modified). If "the BIA's explanation is too thin
to allow us to evaluate the claims of error, we may find an abuse
of discretion and remand to the BIA for further explanation."
Adeyanju, 27 F.4th at 51; cf. Camacho v. Whitaker, 910 F.3d 378,
381 (8th Cir. 2018) (explaining the BIA's obligation to "consider
the issues raised and announce its decision in terms sufficient to
enable a reviewing court to perceive that it has heard and thought
and not merely reacted." (quoting Camarillo-Jose v. Holder, 676
F.3d 1140, 1143 (8th Cir. 2012))).
A remand for the BIA to further explain -- and, if
appropriate, reconsider -- its decision not to consider López's
brief is necessary here. Although the Notice of Action recognized
the BIA's discretion to grant López's motion, it provided no
explanation for why López's motion did "not warrant the [BIA's]
exercise of [that] discretion." And the decision dismissing
López's appeal did not mention López's untimely attempt to file
her brief and likewise offered no rationale except for the
unadorned assertion that López had not "reasonably explained" her
failure to file a brief "within the time set for filing."
- 5 - The BIA's lack of explanation is particularly troubling
because López's motion seems to present at least a colorable basis
for the BIA to favorably exercise its discretion. The record
indicates that López filed her brief electronically on the day
that it was due but filed it in the wrong place. It also appears
that López corrected the filing error on the day that she learned
about it and filed a motion for the BIA to consider her brief on
the day that she was alerted to the necessity for such a motion.
The resulting delay was not extraordinary; rather, it was well
within the period of extensions that the regulations authorize the
BIA to grant in the ordinary course of proceedings. See 8 C.F.R.
§ 1003.3(c)(1). There is "no clear indication" that the BIA
considered any of these facts, or the fact that the government
filed no objection before the BIA clerk issued the short, unsigned
denial. Bartu v. Bondi, No. 25-2048, 2025 WL 2364589, at *2 (8th
Cir. Aug. 14, 2025) (per curiam); see Sihotang v. Sessions, 900
F.3d 46, 51 (1st Cir. 2018) ("So stark a failure to consider
significant facts that appropriately bear on [a] discretionary
decision . . . is perforce an abuse of discretion."). Nor is it
clear that the single-member panel that dismissed López's appeal
appreciated or considered any of these facts.
In short, our review of the record suggests that López
committed a procedural error but acted diligently to correct it.
There may have been valid reasons for the BIA to decline to
- 6 - exercise its discretion to accept her brief, but we have no
indication of what those reasons might be. In these circumstances,
this lack of explanation constitutes an abuse of discretion. See
Bartu, 2025 WL 2364589, at *2 (remanding for reconsideration of
the denial of a motion to accept a late-filed brief because the
BIA "failed to offer a rational explanation sufficient to enable
this court to conduct any meaningful review"); Garcia Gomez v.
Gonzales, 498 F.3d 1050, 1051 (9th Cir. 2007) (per curiam)
(similar); Gutierrez-Almazan v. Gonzales, 491 F.3d 341, 342-44
(7th Cir. 2007) (similar).
The BIA rejected Lopez's appeal primarily because she
did not file a brief. We cannot predict how the BIA would have
resolved Lopez's appeal if it had considered her brief, and
therefore we do not address her other arguments challenging the
immigration judge's rulings. See Garcia Gomez, 498 F.3d at 1051.
We therefore grant the petition and remand for further
consideration consistent with this opinion.
- 7 -