Unreported / Non-Citable
Background
Mohammad Islam, a citizen and national of Bangladesh, entered the United States in December 2024. After he demonstrated a credible fear of persecution, an expedited-removal order was vacated and removal proceedings followed. At a May 7, 2025 hearing, the immigration judge ordered Islam to file any applications for relief by May 15 and warned that missing the deadline would result in abandonment of the applications and removal without another hearing.
The immigration court did not receive Islam’s applications for asylum, withholding of removal, and Convention Against Torture protection by the deadline, and the immigration judge ordered him removed to Bangladesh on May 15. His application arrived May 28. On appeal, Islam asserted that he had given the completed application to a detention officer for mailing on May 13, but he supplied no affidavit or proof establishing that mailing. The Board of Immigration Appeals treated his submission as including a motion to remand and dismissed the appeal after finding no good cause for the late filing.
The Court’s Holding
The Fifth Circuit held that it had jurisdiction to review the denial of remand because the relevant discretionary authority to set and enforce filing deadlines arises from federal regulations rather than a statutory grant covered by the jurisdictional bar. Applying the deferential abuse-of-discretion standard, the court upheld the BIA’s decision. Islam’s assertions in his brief were not evidence, and the May 10 mailing receipt did not identify the package’s contents or establish that he timely mailed the application to the immigration court.
The court also rejected Islam’s due-process claim. The BIA considered his submissions, and Islam did not establish substantial prejudice because his conclusory descriptions of attacks, threats, political targeting, and lack of state protection did not make a prima facie showing that he qualified for asylum, withholding of removal, or CAT protection. The court further held that it lacked jurisdiction to consider Islam’s prisoner-mailbox-rule and equitable-tolling arguments because he had not presented them to the BIA. It denied the petition for review.
Key Takeaways
- An immigration judge may set filing deadlines and deem an application waived when it is not timely filed.
- Unsworn factual assertions by counsel in a brief are not evidence, and an unidentified mailing receipt may be insufficient to prove timely submission.
- A due-process challenge requires substantial prejudice, including a prima facie showing that the applicant could have obtained the requested immigration relief.
- Arguments not first presented to the BIA, including mailbox-rule and equitable-tolling theories, are unexhausted and outside the court’s jurisdiction.
Why It Matters
The decision underscores the evidentiary burden on noncitizens seeking remand after missing an immigration-court deadline. A completed application and counsel’s account of attempted filing may not suffice without affidavits, traceable mailing records, or other competent evidence showing timely compliance or good cause.
It also highlights the need to raise every legal theory before the BIA. Even potentially favorable procedural doctrines cannot be considered on judicial review when the agency had no prior opportunity to address them.