Salvador-Silvestre v. Blanche

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 24, 2026
• Docket: 25-2828
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 24 2026 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOAQUIN TOMAS SALVADOR- No. 25-2828 SILVESTRE; SILDA ANABELLA MENDEZ-PASCUAL; I.A.J.M., Agency Nos. A220-912-698 Petitioners, A220-912-699 A220-912-700 v.

TODD BLANCHE, Acting Attorney MEMORANDUM* General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 22, 2026** San Francisco, California

Before: S.R. THOMAS, KOH, and H.A. THOMAS, Circuit Judges.

Joaquin Tomas Salvador-Silvestre, his spouse Silda Anabella

Mendez-Pascual, and their daughter I.A.J.M. (collectively “Petitioners”) petition

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing

an appeal of an Immigration Judge’s (“IJ”) denial of asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”).

Pursuant to the governing statute, a petition for review from a BIA decision

“must be filed not later than 30 days after the date of the final order of removal.”

8 U.S.C. § 1252(b)(1). The statutory deadline is a non-jurisdictional rule.

Alonso-Juarez v. Garland, 80 F.4th 1039, 1047 (9th Cir. 2023). In this case, the

BIA’s decision was filed on September 9, 2024. Petitioners’ petition for review

was filed on May 1, 2025, more than 7 months after the filing of the BIA decision.

Therefore, the petition was untimely pursuant to 8 U.S.C. § 1252(b)(1).

Assuming, without deciding, that the principles of equitable tolling apply to

8 U.S.C. § 1252(b)(1), the Petitioners have not satisfied them here. As a general

matter, a petitioner “is ‘entitled to equitable tolling’ only if he shows ‘(1) that he

has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way’ and prevented timely filing.” Holland v. Florida,

560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)). “In evaluating whether an ‘extraordinary circumstance stood in [a

petitioner’s] way and prevented timely filing,’ a court is not bound by ‘mechanical

rules’ and must decide the issue based on all the circumstances of the case before

2 it.” Smith v. Davis, 953 F.3d 582, 600 (9th Cir. 2020) (alteration in original)

(quoting Holland, 560 U.S. at 649-50). “In determining whether reasonable

diligence was exercised[,] courts shall consider the petitioner’s overall level of care

and caution in light of his or her particular circumstances.” Perez v. Reubart, 150

F.4th 1164, 1178 (9th Cir. 2025) (citation modified). “The level of diligence

required is reasonable diligence, not maximum feasible diligence,” and “diligence

must be evaluated in all time periods—before, during, and after the existence of an

extraordinary circumstance.” Id. (citation modified).

In a motion to accept the late filing, Petitioners’ counsel claims that neither

he nor Salvador-Silvestre received a notice of the BIA decision until April 26,

2025, when Petitioner’s pending work permit was denied. Although the motion

contained a declaration from Salvador-Silvestre, it did not contain an affidavit

from either him or counsel. “[T]he BIA enjoys a rebuttable ‘presumption of

mailing’ when it issues a decision accompanied by a properly addressed and dated

cover letter. Such a cover letter creates a rebuttable presumption of mailing to the

alien on the date of that letter.” Hernandez-Velasquez v. Holder, 611 F.3d 1073,

1078 (9th Cir. 2010) (citing Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir. 1996)).

The transmitting cover letters contained in the record here indicate that the decision

was mailed to both Salvador-Silvestre and his counsel. The address for

3 Petitioners’ counsel is the same contact information as that contained in filings in

this Court. The unsworn statement submitted by counsel and the declaration by

Salvador-Silvestre are not sufficient to rebut the presumption of mailing and are

not sufficient to establish the requisite extraordinary circumstance. See

Hernandez-Velasquez, 611 F.3d at 1078 (“[T]he presumption of mailing that

attaches to documents sent under such a cover letter may be rebutted by affidavits

of nonreceipt by a petitioner or his counsel . . . .”). In addition, no evidence was

tendered as to the diligence of Petitioners or counsel in attempting to ascertain the

status of the case.

Thus, we dismiss the appeal as untimely filed.

PETITION DISMISSED.1

1 Petitioners’ motion to accept the late filing (Dkt. 4.1) is granted to the extent that the panel could review the filed briefs, but denied as to accepting the petition as timely filed. The Respondent’s motion for an extension of time to file an answering brief (Dkt. 25.1) is granted. 4