Unreported / Non-Citable
Background
Grecia Josefina Perez Rojas, a Venezuelan citizen, entered the United States without inspection or valid entry documents in December 2023. An immigration judge later denied her applications for asylum, withholding of removal, and Convention Against Torture protection and ordered her removed to Venezuela. Her appeal to the Board of Immigration Appeals was due January 17, 2025.
Perez Rojas filed a timely notice of appeal on January 13, but the BIA rejected it because it lacked her signature and a certificate of service. Although the rejection notice allowed 15 days to correct the filing, she did not refile until March 6. She submitted evidence that she could not access the mailbox receiving the notice until February 22 and that she had been providing around-the-clock care for her terminally ill infant, who remained in a pediatric intensive care unit. The BIA summarily dismissed the appeal as untimely, addressing the mailbox issue but not the child’s illness and hospitalization.
The Court’s Holding
The Fifth Circuit granted Perez Rojas’s petition for review and remanded to the BIA. The court held that the BIA abused its discretion by failing to address her evidence and argument that her child’s terminal cancer, prolonged hospitalization, and need for continuous care constituted an extraordinary circumstance warranting equitable tolling.
The court noted that the parties did not dispute that Perez Rojas acted with reasonable diligence. It did not decide whether equitable tolling ultimately applied; instead, it directed the BIA to develop the facts further and determine whether the circumstances were extraordinary, beyond Perez Rojas’s control, and prevented timely filing. The court declined to review her separate due-process claim concerning the immigration-judge proceedings because the BIA had not adopted the immigration judge’s reasoning.
Key Takeaways
- The BIA must consider the individual facts and circumstances supporting an equitable-tolling request rather than omit a material asserted ground.
- A petitioner seeking equitable tolling must show reasonable diligence and an extraordinary circumstance beyond her control that prevented timely filing.
- The Fifth Circuit did not hold that caring for a terminally ill child automatically warrants tolling; it remanded for the BIA to decide that question after considering the evidence.
Why It Matters
The decision reinforces that equitable tolling in immigration appeals requires a fact-specific inquiry, even though the remedy is reserved for rare and exceptional circumstances. A summary dismissal may constitute an abuse of discretion when the BIA fails to address significant evidence offered to explain a late filing.
The ruling gives Perez Rojas another opportunity to establish that her family medical crisis prevented a timely corrected appeal, but it does not reopen her merits claims automatically or predetermine whether the BIA must accept the late appeal.