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Petition filed one day too late dismissed

Where a petition seeking review of a negative asylum decision was filed one day too late, it was dismissed. Although the petitioners argued that, because the Board of Immigration Appeals, or BIA, served the order by mail, Federal Rule of Appellate Procedure 26(c) extended the filing period by three additional days, that argument was rejected. The statutory deadline runs from the date the order was issued, and not the date it was served.

Background

Ana Gloria Santos-de Jimenez and her minor daughter, natives and citizens of Guatemala, petition for review of the final order of the BIA, dismissing their appeal from the immigration judge’s order denying Santos’s application for asylum and withholding of removal. Petitioners filed their petition for review with this court one day after the deadline set by 8 U.S.C. § 1252(b)(1). They contend that Rule 26(c) extends the filing period by three additional days because the BIA served the order by mail.

Analysis

The Immigration and Nationality Act, or INA, requires that a petition for judicial review of a final order of removal “must be filed not later than 30 days after the date of the final order of removal.” This time limit is “mandatory and jurisdictional” and is “not subject to equitable tolling.” Here, the BIA entered its final order of removal in this case on March 29, 2021, the date stamped on the order itself. Petitioners therefore had until April 28, 2021, to file their petition for review. But petitioners filed their petition on April 29, one day outside the statutory time limit.

Rule 26(c) did not afford petitioners three additional days to file. By its terms, Rule 26(c) applies “[w]hen a party may or must act within a specified time after being served.” Section 1252(b)(1) calculates the time for filing a petition for review from “the date of the final order of removal,” not the date the order was served.

Petitioners observe that an immigration regulation requires the BIA to serve copies of its decisions on the affected parties. The BIA’s obligation to serve the parties, however, does not alter the statutory time limit for filing a petition for review, which Congress set to run from “the date of the final order of removal,” not the date of service.

In other provisions of the INA, Congress has imposed timelines that run from service of a document. But § 1252(b)(1) makes no mention of service, and the court must construe this judicial review provision “with strict fidelity to [its] terms.” It therefore concludes that Rule 26(c) does not enlarge the time to file a petition for review governed by § 1252(b)(1).

Indeed, all three courts of appeals to consider the question expressly have held that Rule 26(c) does not apply to extend the time to file a petition for review. Several other courts of appeals have dismissed petitions filed one or two days after the 30-day deadline, calculated from the date of the BIA’s final order, without applying or directly addressing Rule 26(c).

Petitioners cite decisions holding that the time to file a petition for review begins to run when the BIA “‘mail[s] its decision to petitioner’s [or his counsel’s] address of record.’” Unlike in those cases, petitioners do not dispute that the BIA mailed its final order to them on the same day it was entered or that they received the order in time to file a timely petition for review. Rather, petitioners contend that those decisions — which did not address Rule 26(c) — establish that service triggers the time to file a petition.

The court disagrees. As an initial matter, the cases on which they rely involved § 1252(b)(1)’s repealed predecessor statute or relied on those earlier decisions without acknowledging the intervening statutory amendment. In any event, the same circuits that issued those decisions have also held that Rule 26(c) does not extend the deadline for filing a petition for review because the statute does not refer to service. Thus, in determining the application of Rule 26(c), these courts have been unwilling to go beyond the plain language of the filing-period statute.

Petition for review dismissed.

Santos-de Jimenez v. Garland, Case No. 21-1496, Nov. 15, 2022. 4th Cir. (Rushing), from Board of Immigration Appeals. Christopher J. Fernandez for Petitioners. Susan Bennett Green for Respondent. VLW 022-2-242. 6 pp.

VLW 022-2-242